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Wood, J.
Sections 7624 to 7637, inclusive, of Crawford & Moses’ Digest contain the provisions of act No. 285, approved May 26, 1911, of file Acts of the General Assembly of 1911, regulating plumbing in cities of the first ancl second classes. Act No. 285, p. 276, Acts of 1911. The act provides that there shall be, in every city of the first and second classes in this State, a board of examiners of plumbers, consisting of four members, two of whom shall .be master plumbers and two journeyman plumbers, to be appointed by the mayor and approved by the council. No person shall be a member of this board unless he has served a regular apprenticeship and worked as a practical journeyman for a period of five years or more. The board is given power to examine all applicants as to their knowledge of plumbing, house drainage and plumbing ventilation, and, if satisfied of the competency of the applicant, the board shall issue to each applicant a certificate authorizing them to work at the business of plumbing. The board is authorized to formulate rules regulating the work of plumbing and drainage, such regulations to include materials and workmanship and the manner of executing the work connected with plumbing and drainage. The board, from time to time, may alter such rules. It is made unlawful for any person to work in the capacity of a journeyman plumber or to install plumbing fixtures or materials unless he shall first obtain a certificate of competency, and any person violating any of the provisions of the act and any of the rules or regulations established under the authority therein designated, shall be guilty of a misdemeanor, and, on conviction thereof, shall be fined not less than $5 nor more than $50 for each and every violation of the act, and, in addition, have his certificate revoked by the board of examiners.
The city council of the city of Little Rock, a city of the first class, passed ordinances pursuant to the act, creating a board of examiners of plumbers and prescribing its powers and duties. The jurisdiction of the board of examiners was to be coextensive with the corporation limits and one mile beyond, for all purposes except quarantine purposes, and for quarantine purposes, in case of epidemic, five miles beyond such limits. One of the duties of the board was to examine applicants for plumbers ’ certificates as to their knowledge of plumbing, pliimbing ventilation, and house drainage, both practically and theoretically, and, if satisfied as to the competency of such applicants, to issue to them certificates to do plumbing. The board was to receive, as compensation for their services, fifty per cent, of all the examination fees, and each applicant was required to pay the sum of $5 before an examination could be had. The ordinances authorized the board of examiners to formulate a code of rules regulating plumbing and drainage and to amend or alter such rules from time to time. The ordinances created the office of chief plumbing inspector, prescribing his qualifications, duties and compensation. He was to preside at all meetings of the board of examiners, assist in the formation of rules and regulations, and inspect all plumbing and drainage, and secure the proper performance of the work, and, in case he found the same satisfactory, to issue a certificate upon the payment of certain fees for inspection, as prescribed b;y the schedule set forth in the ordinances.
It was provided that the plumbing department should be under the supervision of the board of health. Among other things, the ordinances provided that any person working at the business of plumbing, or installing or placing any plumbing fixtures or material, without having first received a certificate from the board of examiners, shall be deemed guilty of a misdemeanor and fined a sum not less than $5 nor more than $50.
Gr. W. Replogle, for himself and others similarly situated, instituted an action in the chancery court, setting up that they were plumbers, and had practiced their vocation in the city of Little Rock and vicinity for many years; that they desired to pursue their vocation without the certificate required under the rules established by the board of examiners under the act and ordinances .above set forth. They alleged that they instituted this action against the city of Little Rock and the chief inspector of plumbing'; that, for various reasons, the act and ordinances passed in pursuance thereof were unconstitutional, and they prayed that the city of .Little Rock and the chief inspector of plumbing be enjoined from enforcing the same.
The allegations of the complaint as to the invalidity of the statute were denied in the answer, and the cause was heard upon the pleadings, the evidence adduced, and the act and ordinances' passed in pursuance thereof. The court held that the act and ordinances were valid, and entered a decree dismissing the complaint for want of equity, from which decree is this appeal.
Under our State and Federal Constitutions all men have the inalienable right to acquire, possess and protect property and to pursue their own happiness, and of these sacred rights no man can be deprived without due process of law. Article 2, § '2, Constitution of Arkansas 1874; Arndt. 5, Const, of U. S.; Arndt. 14, § 1, Const, of U. S. Any statute, or municipal ordinance enacted pursuant thereto, which challenges the right ' of any person to engage in the legitimate and honest occupation of plumbing, without restraint or regulation, must find its justification in the fact that such a statute or ordinance is necessary to. promote the general welfare. No individual can be deprived of the right to pursue his happiness in his own way, and to engage in honest toil in any avocation and in any manner he sees proper, in order to make a living for himself and those who may be dependent upon him, so long as he does not use such right-in a manner to injure others. So long as the individual does not transcend this bound, his conduct is not subject to police regulation. Police power can only be exercised to suppress, restrain, or regulate the liberty of individual action when such action is injurious to the public wel fare. When statutes, and municipal ordinances pursuant thereto, have- been enacted- purporting to protect the. health and welfare of a community, all doubts as' to the constitutionality of such legislation must be resolved in its favor. Such deference and consideration must be given by the courts to the Legislature, a coordinate department of the government, as not to unduly inter-fere with its supreme legislative power, and never to interfere with such power unless it appears that the exercise is clearly outside the scope of the organic law, which is over all departments of the government, and which all are bound to observe- as- fundamental in the protection of the liberty, happiness, and general welfare of the community. Williams v. State, 85 Ark. 470; Dreyfus v. Boone, 88 Ark. 358; Pierce Oil Co. v. Hope, 127 Ark. 38; Baker v. Walker, 204 U. S. 311. But, when such enactments are challenged as an invasion of. the rights and liberties of the .individual guaranteed by the fundamental law, then it becomes the duty of the courts to. lay these enactments alongside, the Constitution and determine whether the exercise of the police power , in the suppression or regulation of ordinary occupations, trades, or callings, is .really necessary for the. public good.’, , , .
• Judge Cooley says: “It is an important, part of civil -liberty to have-the right to follow all lawful employment,” Cooley on Torts, 277; Mr. Tiecleman sgys: “No man’s liberty is safe if the Legislature can deny hint the right to engage in a harmless calling.” 1 Tiedemah on State.& Federal Control of Persons and Property, 236. Mr. Justice Bradley,- speaking for the United States Supreme Court in Butchers, etc. Co. v. Crescent City Co., 111 U. S. 746, says: “The right to. follow any of the common occupations of life -is an inalienable right,' * * * The right to follow any of the ordinary callings of life is one of the privileges of a citizen of the United States.”
■ These general observations are indeed but an announcement of axiomatic rules of law under our coordinate department system of government, and but the declaration of the personal rights, guaranteed by our State and Federal Constitutions, which are recognized generally by the courts of. this country. Courts of last resort, however, differ widely as to whether legislation of a similar or kindred nature to that under review is an infringement of the above rights. A majority of the courts that have had under consideration similar statutes have sustained them as a proper exercise of the police power. Douglass v. People, 225 Ill. 536; Singer v. State, 72 Md. 464; People v. Warden, 144 N. Y. 529; State v. Gardner, 58 Ohio St. 599; Blitz v. Pittsburg, 211 Pa. 561; State ex rel. Winkler v. Benzenberg, 101 Wis. 172; Caven v. Colman (Tex.) 96 S. W. 774; State ex rel. Chapel v. Justus, 90 Minn. 474; State v. DeVerges, 27 A. L. R., 1528.
The rationale of the doctrine of these cases is that plumbing is an occupation which peculiarly affects the public health, and therefore comes well within the police power of the State to regulate the manner in which it shall be conducted. People v. Warden, supra, is a leading case. The statute in that case created an examining board of plumbers with power to examine all persons applying for certificates of competency, as employing or master plumbers, to determine their fitness and qualifications for conducting such business and to issue certificates of competency upon a satisfactory examination. The act required the board of examiners to contain the chief examiner of the city sewers and the chief inspector of plumbing- of the board of health. It required" registration with the board of health, and that the business shall be conducted under rules and regulations prescribed by that board. The act was sustained by a divided court, three of the judges being for affirmance and three for reversal. The opinions for and against the validity of the statute are able and exhaustive of the subject. Judge Gray, who wrote the opinion upholding the statute, says: “I am not unwilling- to concede that the act skirts pretty closely that border line beyond which legislation ceases to be within the powers conferred by the people of the State, through the Constitution, upon its legislative body. ’ ’ The opin ion of the dissenting judges was voiced by Judge Peckhaji. He has stated the reasons why such legislation is invalid far mure cogently than the writer can hope to do, and we adopt the reasoning of his opinion and the conclusion reached as our own. Among other things he says: “The Legislature might probably provide for a sanitary inspection of the plumbing work and thus secure a kind of work, as to its system and sufficiency, which might fairly be said to tend towards the protection of the health of the general public. But the trade of the practical plumber is not one of the learned professions, nor does such a tradesman hold himself out in any manner as an expert in the science of sanitation, nor is any such knowledge expected of him, and this act, when practically enforced, may or may not exact it of him. This board, has the very greatest, and an entirely arbitrary, discretion as to what qualifications it will exact from the applicant. It may make an examination which none but an expert in sanitary knowledge could pass, or it may make the examination entirely perfunctory. * * * If it is intended as an act simply to secure the ordinary capacity necessary for the prosecution of the trade of a plumber, it is useless and vexatious, and not a health regulation in any form. If it exact more, it is an improper addition to the qualifications of a simple tradesman. This act permits the greater exaction to be made. '* * The examination provided for by this act, if conducted for the sole purpose of discovering the qualifications of an applicant in regard to those matters which pertain and are germane to the real and practical trade of a plumber, will not have the slightest tendency to discover whether he has also the requisite knowledge to enable him to act as a sanitary expert. Taking the act as a whole, it would seem quite apparent that its purpose is to enable the employing plumbers to create a sort of guild or body among themselves, into which none is to be permitted to enter excepting as he may pass :an examination, the requisites of which are not stated, and where his success or failure is to be determined by a board of which some of their own numbers are members. In order to be at liberty to exercise his trade as a master plumber, he must pass this examination and become a-member of this favored body. It is difficult for me to see the least resemblance to a health regulation in all this. I think the act is vicious in its purpose, and that it tends directly to .the creation and- fostering of a monopoly. * * * This measure detracts- from the liberty of the citizen, acting- as a tradesman, in his efforts to support himself and his family by the honest practice of a useful trade, and I think no court ought to sanction such legislation unless it- tends much more plainly than does this act towards the preservation of the health and comfort.-of the public.”
If the act under consideration' in the above case “skirted pretty closely that border line'” beyond which the Legislature cannot go, as conceded in .the opinion upholding it, then 'certainly the act under review in the case at bar passes far beyond the border line, and violates the personal rights guaranteed by the provisions of ’both the State and Federal Constitutions above referred to. The New York statute required that the chief ’ examiner of city sewers and the chief inspector of plumbing of the board of health be members of the examining board' of plumbers, and contained other provisions which directly connected the board 'of éxaminers of plumbers with the board’ of health. ’ But the statute under consideration contains no such provisions, and there is nothing ■ in all the -■ act to indicate that its primary purpose was to conserve the public health, except’ the broad .provision’ that the plumbing department, consisting of the' examining board, the ehiéf inspector and ’ his deputies, sháll be under the supervision of the board of health of said city, and requiring the chief inspector to make a complete report of the plumbing department to the board -of health at the end of each year. The act contains no specific provisions -prescribing the manner in which the board of health of cities of the first and second classes shall regulate the plumbing department so as to make that department an efficient instrument for the preservation of the public health. The Arkansas statute contains all'the obnoxious features condemned by Judge Peckham in the New York law, and more. It requires all applicants who desire to engage in the business of plumbing, either as journeyman plumber, or as master plumber working in the capacity of a journeyman plumber, or any person installing or placing plumbing fixtures or materials, to pass such examination as to his qualifications and competency as the board may prescribe. The examination shall be of such character as to thoroughly test the applicant’s ability both practically and theoretically.
The power thus vested in the examining board, without any restriction, and without any specification of the knowledge that should be required of plumbers in order to pass the examination, would enable the board, if it so elected, to arbitrarily prescribe theoretical tests, with which no applicant could comply, even though he might have perfect knowledge of and be thoroughly skilled in all the practical work of a plumber. The personal rights guaranteed by our State and Federal Constitutions cannot be taken away on theories.
The appellant, Replogle, alleges in his complaint that one of the rules adopted by the examining board requires applicants to submit to a test in wiping lead joints. Sixty per cent, is marked off for failure to meet such test; that wiping lead points is an obsolete practice, and no longer an essential part of a plumber’s knowledge, as the board well knew; that this requirement is an unjust, arbitrary and discriminatory condition precedent to the issuance of certificates. He further alleges that he is a practical plumber, well versed and skilled in the art, but that he failed to meet the unfair and arbitrary test required by the board, and was thus wrongfully and illegally denied a certificate.
Whether these allegations were sustained by the proof the record does not disclose, but we refer to them because they'serve to illustrate the arbitrary and oppressive power that the board of examiners might exercise to deprive one who- is thoroughly qualiíiéd to do the practical work of plumbing, of his constitutional right to pursue his avocation, and perhaps his only livelihood, because, forsooth, he was unable to answer some technical or theoretical question not in any sense germane to the real and practical trade of a plumber, and not having even the remotest connection with the actual conservation of the public health. The constitutionality of the act must be tested, not by what the board has actually done, but by the power it actually has. The presumption that public servants will do their duty cannot be indulged in determining whether the act violates the Constitution. It is a question of the power conferred and what the board might do under it, and, to be valid, the act must meet every test required by the Constitution, even the most extreme.
In this connection we desire to quote again • from Judge Peckham, after he became a Justice of the Supreme Court of the United States. The Supreme Court of the United States, in the case of Lochner v. New York, 198 U. S. 45, had under consideration an act of the State of New York forbidding employees from working’ in a bakery or confectionery establishment more than sixty hours in one wrnek. The act had been sustained by the Court of Appeals of New York, the same two judges of the State court dissenting as had joined with Judge Peckham in his opinion in the case of People v. Warden, supra. Speaking- for the Supreme Court of the United States, Judge Peckham:, among other things, says: “It is impossible for us to shut our eyes to the fact that many of the laws of this character, while passed under what is claimed to be the police power for the purpose of protecting the public health or welfare, • are, in reality, passed from other motives. We are justified in saying so when, from the char acter of the law and the subject upon which it legislates, it is apparent that the public health or welfare bears but the most remote relation to the law. The purpose of a statute must be determined from the natural and legal effect of the language employed; and whether it is or is not repugnant to the Constitution of the United States'must be determined from the natural effect of such statutes when put into operation, and not from their proclaimed purpose. The court looks beyond the mere letter of the law in such cases.”
Although bottomed on a different statute, we consider that the language above quoted from Judge Peck-ham, speaking for a majority of the Judges of the Supreme Court of the United States, is exceedingly apposite to the case in hand.
In State ex rel. Richie v. Smith, 42 Washington, 237, the Supreme Court had under consideration a statute like ours regulating plumbing. Judge Rudkin, voicing the unanimous opinion of the . court, after quoting extensively from the opinion of Mr. Justice Peckham in the case of People v. Warden, supra, says: “We have quoted at length from this dissent, because a Federal question is involved -and because the views of the learned justices are in accord with our own, and, in our opinion, are shared by a majority of the Supreme Court of the United States, of which, he is now a member.” Judge Rudkin concludes his exhaustive and illuminating opinion as follows: “We are satislied that the act has no such relation to the public health as will sustain it as a, police or sanitary measure, and that its interference with the liberty of the citizen brings it in direct conflict with the Constitution of the United States.”
The opinion of the Washington court is in harmony with our own views. It follows that the decree of the trial court must be reversed, and the cause will be remanded with directions to enter a decree granting' the prayer of the appellant’s complaint.
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Smith, J.
I. S. Wilmans died testate in Jackson county, Arkansas, and his will was admitted to probate the 8th day of July, 1929. He left no children, but was survived by his wife, who was not the only — but was the principal — beneficiary. The will is long, and contains many provisions which are unimportant in the consideration and decision of the only question presented on this appeal, and only such portions of the will are copied as bear upon this question presently-to be stated.
Wilmans was reputed to be a man of wealth, and no doubt considered his estate sufficient to. provide the benefactions which the will enumerated. He devised his home to his wife, $500 to a cousin, and smaller amounts to certain persons designated as good friends. These bequests were promptly paid by the trustees to whom the whole estate was devised. These trustees were three in number, one of them being a brother of the deceased. The will contained provisions for the perpetuation of the trust until its purposes had been discharged.
All the estate, real and personal, was devised to these trustees, with full power to sell and convey any part of it, or to reinvest the proceeds of sales, all for the purpose of executing the trust created.
Paragraph (D) of the will created three annuities, and reads as follows: “(D) The net income from all property, both real and personal, devised to said trustees and which "shall come under their control and management shall be paid out and disbursed by them in the following order and amounts, to-wit:
“ (1) They shall pay to my wife, Ella D. Wilmans, the sum of $4,000 annually, so long as she may live, payable in four installments of $1,000 each on January 1st, April 1st, July 1st and October 1st of each year, the first quarterly installment being due at the first of any month above named next following my death. *
‘1 (2) They shall pay to my cousin, Webster Robertson, the sum of $600 annually, so long as said trust may continue, payable in four installments of $150 each on January 1st, April 1st, July 1st and October 1st of each year, the first quarterly installment being due at the first of any month above named next following my death.
“ (3) They shall pay to Hattie B. Wilmans the sum of four hundred dollars annually, so long as said trust may continue, payable in four installments of $100 each on January 1st, April 1st, July 1st and October 1st of each year, the first quarterly installment being due at the first of any month above named next following my death.
“If it be necessary in order to have or provide funds to make the payments directed to be made in subdivisions (1), (2) and (3) above of subsection (D) of section five of this will, the trustees herein named and their successors shall have and are here given the power and authority and here directed to sell and dispose of any notes, securities or other personal property belonging to said trust estate and, if necessary, to sell any lands belonging to said trust estate and to secure and provide funds to make such payments.”
The annuities provided for in subdivisions (2) and (3) of subsection (D) of section five of the will, above copied, were paid to the annuitants there named during their lives, both now being dead.
We think it clear that the primary purpose of the testator was to provide for the payment of these annuities during the lives of the respective annuitants, for, after conferring the powers recited in subsection (D), above copied, he reaffirmed those powers in subsection (G-), which reads as follows: “(Gr) Said trustees are hereby authorized and shall have the power to sell any of the lands of the trust estate at any time if the same do not appear to be profitable or if necessary to provide funds to pay any annuities under this will, and to convey an absolute title thereto. ’ ’
Anticipating a possible surplus after paying these annuities, subsection (4) of paragraph (D) contained the following provision for the distribution of the surplus of the net income after paying the annuities, to-wit:
“(4) Any and all net income after the payments above provided for have been made there shall be paid to and divided equally on the first of January and July of each year among my beloved brothers and sisters, Edward B. Wilmans, Robert D. Wilmans, Mildred A. Dorsey, Lucy W. Jones, Susan R. Sprigg, and Elizabeth B. Harris, and shall be paid share and share alike to them and to the survivors or survivor of them as long' as they may live, the survivor to receive the whole until his or her death. ’ ’
Beneficiaries under this subsection (4) of paragraph (D) were indebted to the testator, but as appellants’ brief states, this indebtedness was considered as a “Family affair,” and no effort was made to collect it.
Further anticipating that a surplus would remain in the hands of the trustees after the death of the testator’s wife, subsection (5) of paragraph (D) provided that:
“(5) After the death of my said brothers and sisters and within one year from that time, if my said wife be then dead, said trustees shall divide all the property of said trust estate equally among all my nieces and nephews, the children of E. B. Wilmans, Lucy W. Jones, R. D. Wilmans, Susan R. Sprigg and Elizabeth B. Harris, living at the date of the death of my last surviving brother or sister and to the descendants of such of my said nieces and nephews as may then be dead, per stirpes, but if my said wife be not then dead said trust estate shall continue until her death, at which time, or as soon thereafter as can conveniently be done, and not later than one year from such date, said trustees shall divide said trust estate among my said nieces and néphews living at the time of the death of the last survivor of my said brothers and sisters and to the descendants of such of my said nieces and nephews as may be dead at the time of the death of the last survivor of my said brothers and sisters ; and from the date of the death of the last survivor of my said brothers and sisters to the date of the death of my wife, if such be the event, that portion of the net income from said trust estate theretofore paid to my said brothers and sisters shall be paid to said nieces and nephews living at the time of the death of such last surviving brother or sister and to the descendants of such of said nephews and nieces as may then be dead, per stirpes. And division shall then be made of said trust estate as herein provided and this trust shall thereupon cease, provided that if my said cousin, Webster Robertson and Hattie B. Wilmans, or either of them, be then living, that provision shall be made by said trustees for the continued payment to them during their lifetime of the annuities given them in section five of this will. ’ ’
This subsection (5) of paragraph (D) reiterates the primary purpose of the testator to provide for the support of his wife by the payment of the annuity to her during her life, as the division of the anticipated surplus was not to be made until after her death, and it was directed that the trust continue and be administered by the trustees until after that event.
Only one-half of the annuity pajmble to the testator’s wife was paid in 1929, all of it was paid in 1930, nothing was paid in 1931, 1932, 1933, and 1934. $822.24 was paid in 1935, $4,185.10 was paid in 1936, nothing was paid in 1937 and 1938. In 1939 $397.99 was paid, and $839.98 was paid in 1940.
In January, 1941, the widow filed this suit to enforce the payment of arrearages. She named as defendants the trustees and the heirs of the testator who, under subsection (5) of paragraph (D), above copied, would be beneficiaries upon closing the trust. There were fifty-seven of these defendants altogether, and several entered their appearance voluntarily and filed no answer or other pleading, and only two of the heirs filed answers resisting the relief prayed. •
These answers alleged that although there were three trustees in office at all times, only one of them, R. D. Wilmans, a brother of the testator, was active, and it was alleged that this trustee and the widow had colluded together, to despoil the estate. No proof of this allegation was offered, and it is not urged here. It was prayed, however, that the trustees be required to account and show why. the estate had dwindled in value so that it was insufficient to pay the widow’s annuity.
This prayer was granted, and a master was appointed for that purpose. The master found the estate so involved that he was permitted to employ a public accountant to audit the estate, and a detailed report was made by the auditor of all receipts and disbursements by the trustees. This audit tells the tragic story, of which there are many counterparts in all this country, of the happenings during the period which is referred to as the depression years.
An order was entered September 16, 1941, “by agreement of counsel for the respective parties,” that the property of the estate be sold by a commissioner appointed for that purpose, but reserving to the two defendants who had filed answers and others who wished to do so, the right to file further exceptions to the report of the master, based upon the audit above referred to.
' After the assets of the estate had been appraised pursuant to the order of the court, they were sold by the commissioner. The assets consisted of a number of tracts of land, and contracts for the sale of other tracts of land which the trustees had made. These assets were first offered separately, and then collectively, and the latter sale providing a larger sum of money, that sale was reported to and confirmed by the court. The widow was the purchaser, and the sum bid .by her was $13,000.
The court found that had the assets of the estate been sufficient to provide enough income to pay the annuity as it matured, the widow would have received, as of the date of the decree, the sum of $49,000, but that she has in fact been paid only $12,342.33, a difference of $36,657.67.
After providing for'payment of costs and a fee to E. D. Wilmans as a trnst.ee, no fee being allowed to the other trustees, it was ordered that the balance be paid to the widow in partial discharge of the unpaid annuity. Exceptions were saved, and from that decree is this appeal.
It is insisted that the compensation allowed the trustee is excessive; and in view of the results achieved it appears to be so; but it further appears that the widow is the only person prejudiced, that is if she is entitled to have the proceeds 'of the sale applied to the payment of her annuity.
In opposition to this claim the defense of the statute of limitations is interposed, it being insisted that having failed to collect the annuity as it matured, much of it is now barred by the statute of limitations. This is the only question presented for decision; and we have made this somewhat lengthy statement of the case that it may appear whether or not this statute is applicable. If the statute of limitations is not applicable, the decree must be affirmed, as the entire proceeds of the sale of the assets of the estate are insufficient to pay the widow the arrearage in the annuity, and, this being true, it will be unnecessary to decide whether the compensation allowed the trustee, Wilmans, is excessive, as the widow alone is prejudiced by its allowance, and she makes no complaint.
Very clearly the will creates an express trust, and the rule in such cases is that the statute of limitations is inapplicable to suits brought to enforce a trust.
At § 1486, page 899, of his excellent work on Arkansas Titles, Jones says: “Limitations will not run against an express trust unless there are facts which raise the presumption of extinguishment of the trust, or where an open denial or repudiation of the trust is brought home to the knowledge of the parties in interest, 46 Ark. 25; see 16 Ark. 122; 20 Ark. 195; 23 Ark. 362; 28 Ark. 19; 47 Ark. 301, 1 S. W. 546; 52 Ark. 76, 12 S. W. 155; 52 Ark. 168, 12 S. W. 328; 58 Ark. 84, 23 S. W. 4; 63 Ark. 56, 37 S. W. 406; 64 Ark. 26, 41 S. W. 427; 71 Ark. 164, 71 8. W. 669; 150 Ark. 347, 234 S. W. 259; 182 Ark. 1110, 34 S. W. 2d 1063; 6. S. W. 2d 8. But it is the general rule, subject to exceptions, that limitations will run against implied, resulting and constructive trusts, 182 Ark. 1110, 34 S. W. 2d 1063; 58 Ark. 84, 23 S. W. 4; 49 Ark. 468, 5 S. W. 797; 20 Ark. 195.”
At page 903, 37 C. J., title Limitations of Actions, a great many cases are cited in support of this statement of the law:
“(Section 267) 27. Trusts — a. General Rule. Incase of a technical, or in other words, direct, express, continuing trust, such as is exclusively within the jurisdiction of a court of equity, the general rule, sometimes declared by statute, is that the statute of limitations does not run between trustee and cestui que trust, so long as the trust subsists, for the possession of the trustee is the possession of the ceshñ que trust and the trustee holds according to his title; and, moreover, so long as this condition exists, no cause of action has accrued. In order to set the statute in motion in favor of the trustee the trust must terminate, as by its own limitation or by settlement of the parties, or there must be a repudiation of the trust by the trustee and an assertion of an adverse claim by him, and the fact made known to the cestui que trust. This proposition is well established by all the numerous cases in which the question has arisen, and there is no conflict of authoritjr whatever upon the subject. The rule, however, is subject to the qualification that the cestui que trust may be barred of his remedy through laches or such a lapse of time as will give rise to a presumption of discharge or extinguishment of thé trust. ”
Here, the trustees have, at all times, been in possession .of the trust property, and the trust was not terminated until the sale of the assets of the estate ordered by the decree from which is this appeal.
The widow has been guilty of no laches. It is true she was not paid her annuity regularly and promptly, as the will provides; but this was because funds for that purpose were not available.
As appears from the provisions of the will, herein-above copied, the trustees were empowered to sell assets, if necessary, to pay the annuity without directions to that effect from a court, and there was no error upon the part of the court in ordering this done.
The decree is correct, and is, therefore, affirmed. | [
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Kirby, J.
This is a proceeding by appellants, landowners within the alleged Drainage Improvement District No. 11 of Jackson County, against the commissioners of Drainage District No. 14, the validity of which is challenged, because the entire territory thereof, except 80 acres of land, was first included in Drainage District No. 11, which, it was alleged, was legally organized. It was alleged that confirmation of the assessment of benefits in District No. 14 constituted a lien on the lands and a cloud on the title of the plaintiffs, and temporary injunction was asked and issued, restraining the confirmation of assessment of benefits, the contract for construction, and the sale of bonds.
It appears from the agreed statement of facts that a petition for the formation of Drainage District No. 11 was duly filed on September 3, 1921, and included in the description of lands the north one-'half northwest one-quarter section 20, township 13 north, range 2 west. An engineer was appointed to make the preliminary sur vey, and filed his report on the 8th of October, 1921, which did not include said 80 acres of land as benefited. On that day there was filed another petition, claimed to be signed by a majority of the real property owners of the district, including said 80-acre tract. Notice was duly published showing said 80 acres as included within the proposed boundaries of the district, and on November 1, 1921, the county court duly entered an order establishing said Drainage District No. 11, not including within it the said 80-acre tract, and in all subsequent proceedings same was not included as a part of the district.
On February 3, 1926, the county court entered an order creating Drainage District No. 14, the boundary lines of which were coterminous and identical with the boundary lines of Drainage District No. 11, as described in the order of the county court creating that district, except that the 80-acre tract that was left out of District No. 11 was included in District No. 14, No. 14 being created for the same purpose as No. 11 was attempted to be created, and all proceedings for the establishment of the district being regular, if Drainage District No. 11 was invalid.' The contention of the parties, as stated, being, on the one hand, that District No. 14 is void, since District No. 11 was first organized and was a valid district, and, on the other hand, that District No. 11 was invalid, and District No. 14 legally organized.
The court held that the inclusion of the said 80-acre tract in the notice of the day set for the creating of said District No. 11, as its exclusion had been recommended in the report of the preliminary survey of the engineer, constituted a variance fatal to the organization of the said district, and held District No. 11 to be void, and dismissed the complaint, from which this appeal is prosecuted.
It has long been settled that the notice required given hv § 3607 of C. & M. Digest of the statutes is jurisdictional, and that no lands can be included within the boundaries of such district that are not included within such notice. Paschal v. Swepston, 120 Ark. 230, 179 S. W. 339; Jones v. Fletcher, 132 Ark. 328, 200 S. W. 1034.
The statute only contemplates that a preliminary survey and estimate shall he made by the engineer of the territory proposed to be included in the district, showing which of the lands will be benefited by the proposed improvements, and giving a general idea of its character and expense, and make such suggestions as to the size of the drainage ditches and their location as he*may deem advisable. Ayers v. Crittenden, 123 Ark. 246, 185 S. W. 285.
This report is not conclusive, and necessarily would not exclude the land not recommended as benefited from the boundaries of the proposed district, but the county court would hardly be expected to approve the report and exclude such territory before the final hearing on the petition, after notice, to determine whether it should be granted and the district established.
The court properly included this tract of land in the notice given for the establishment of the district, requiring all the persons within same to show cause in favor of or against its establishment. After such hearing1, by order duly made, it established the district, excluding from its boundaries the said 80-acre tract of land, notwithstanding same was embraced in the petition and notice as proposed to be included in the district. This was done after all the property owners within the proposed district had been given opportunity to appear and advocate or resist the establishment thereof, and the district as established was valid, and necessarily the ■second District No. 14 thereafter attempted to be organized of all the territory included in said District No. 11, with the addition only of the said 80 acres left out of its boundaries, for the same purpose and the construction of the same improvement, with little difference in the amounts of the estimated cost and expense thereof, was invalid, being in effect but a collateral attack upon the organization and establishment of said District No. 11, which was in all respects a valid organization.
The court erred in holding otherwise, and its decree will be reversed, and the cause remanded with directions to enter a decree in accordance with this opinion. It is so ordered. | [
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Hart, J.,
(after stating the facts). The -cause of action of the plaintiff is based upon two counts. The first was that there was no express contract between him and Dr. Black for the dental work in question. After Dr. Black and his assistant had done the work, Dr. Black represented to him that $150 was a reasonable price for the work, and he paid him that amount on the faith of this representation. He afterwards found that Dr. Black had -overcharged him, and he sued to re-cover the overcharge. In the second count the plaintiff alleged that the defendant had negligently and unskillfully performed the dental work and thereby -caused his gums to rise :and give him great pain.
On the other hand, it is the contention of the defendant that the plaintiff agreed to pay him $150 before he commenced the work, and that the work was done in a skillful manner.
It cannot be doubted that a -dentist is entitled to recover from a patient the amount agreed to be paid him for his -services under an express contract. If no express contract was made, he would be entitled to recover a reasonable compensation for his services. For example: if there was no express contract between the parties, and, after the- work was done, Dr. Black had demanded an unreasonable fee, Bearden might have refused to pay him, and in a suit Dr. Black would only be entitled to recover upon a quantum meruit. On the other hand, if Bearden paid the amount demanded, he could -only recover the overcharge on the ground that the settlement had been procured through fraud.
In the case of Guild v. Whitlow, 162 Ark. 108, the defendant -claimed that he was induced to agree to pay a surgeon a specified amount for an operation on his representation that such a sum was a reasonable charge. The court held that he could not set aside the contract on the ground of fraud simply because the fee was unreasonable.
The court further said that it is not sufficient to show that the contract was procured by fraud, to prove that the surgeon charged more than other surgeons charged for a similar operation in the same city. There must be some mental distress caused by the attending circumstances, which would amount to fraud in law, because the party seeking to enforbe his contract had taken an unconscionable advantage of one who, under the circumstances, had a right to rely upon his representation that the fee was a reasonable one. In that case the contract was made before the operation was performed.
Here the same principle applies. The services were performed before the fee charged by the dentist was paid. Barden was under no duress whatever. No coercion of any sort was practiced upon him. He made the payment of his own volition, simply because Dr. Black told him the charge was a reasonable one. As we have already seen, this is not sufficient to establish fraud. There is not even testimony- in the record sufficient to legally establish that the charge made by Dr. Black was unreasonable. It is true that the plaintiff testified that Dr. Pate told him that he would have been glad to have done the work for $13. Dr. Pate denied having made this statement. Hence the testimony of the plaintiff did not amount to affirmative testimony that the charge was unreasonable. Dr. Pate having denied making the statement, the testimony of the plaintiff to the effect that he did make it could only go to test the credibility of Dr. Pate as a witness.
We do not deem it necessary to set out the instructions given by the court. It is sufficient to say that, as a whole, they submitted to the jury the question of whether or not the plaintiff was entitled to recover on his count for overcharge, and, there being no testimony upon which to submit this question to the jury it was error to do so. The error was necessarily prejudicial, because this court cannot tell whether the verdict of the jury was based on the count for overcharge or the count for malpractice. Carrigan v. Nichols, 148 Ark. 337; Huddleston v. St. L. I. M. &. So. Ry. Co. 88 Ark. 454; Moore v. Moss, 117 Ark. 593; and District Grand Lodge No. 11, etc. v. Pratt, 96 Ark. 614.
The plaintiff’s own testimony was sufficient to enable him to go to the jury on question of whether the dentist had been negligent in his work of crowning one tooth and filling the other. He testified that the crown came loose within three months, and that the dentist, iii working on his other teeth, negligently permitted his instrument to slip and badly injure his gums, and thereby caused an abscess which gave him great pain.
In Dunman v. Raney, 118 Ark. 337, the court held that a physician .or surgeon is only bound to possess and to exercise that degree of skill and learning ordinarily possessed and exercised by members of his profession in good standing practicing in the same line, and in the same general neighborhood or in similar localities.
The court further said that he must use reasonable care in the exercise of his skill and learning, and must act according to his best judgment in the treatment of his patients.
The rules governing the duty and liability of physicians and surgeons in the performance of professional services are applicable to practitioners of the kindred branches of the healing art, such as dentists, oculists, and manipulators of x-ray machines. 21 R. C. L; § 31, p. 386, and cases cited. See also Runyan v. Goodrum, 147 Ark. 481.
We also call attention to the fact that, in the case of Dunman v. Raney, 118 Ark. 337, the court decided the basis for awarding damages in an action by a patient against a physician for improper treatment.
It follows that, for the error in submitting to the jury the question of overcharge, the judgment must be reversed and the cause remanded for a new trial. | [
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Humphreys, J.
Appellants were enjoined by decree of the chancery court of Union County, Second Division, from constructing a dam at the junction of two small creeks near the southeast corner of the northwest quarter of the southwest quarter, section 11, township 16 north, range 15 west, in said county, for the purpose of. establishing a pick-up station to catch waste oil running into said creeks from oil wells on lands, other than the 40-acre tract described and the 40-acre tract immediately west of.it, said 80-acre tract having been leased by appellants to appellees for development of oil and gas for commercial purposes. An appeal has been duly prosecuted to this court from the decree.
There is no dispute between the parties as to the law applicable to the facts under the terms and provisions of the oil and gas lease made between the parties. It is an ordinary commercial oil and gas lease, known as the producers’ 88 form,'in use in the Arkansas oil fields, except that it required the lessees to begin drilling within a month from the date thereof, to pay a portion of the consideration out of the proceeds of oil and gas produced on the lands, and without a provision for extending the lease by payment of rents. The dispute in the case is one of fact and not of law.
The construction of leases of this kind with reference to the use of the surface of the lands leased is that the lessor and lessee have concurrent possession thereof, the lessee being entitled to such parts thereof as are necessary for developing the oil or gas thereunder for commercial purposes and to market same, and to do everything on the premises necessary to make the operation of the lease effective, without hindrance or interference on the piart of the lessor. The lessor is entitled to use all other portions of the surface for agricultural and other purposes, provided, in doing so, he does not interfere with the effective operation of the lease. This is the substance of the rule announced in the case of the Standard Oil Company of Louisiana v. Oil Wells Salvage Company, 170 Ark. 729, 281 S. W. 360.
Appellants contend for a reversal of the decree upon the alleged ground that .the finding of the trial court, to the effect that’the construction of the dam will interfere with the effective operation of the lease, was contrary to the weight of the evidence.
The proposed dam was to be 450 feet long and 3 feet high, ¡across the space where the two creeks intersect near the southeast corner of the leased lands. The witnesses introduced by appellants testified that the dam, would not cause the water and oil in the creeks above the dam to go any higher than the high water marks along 'the sides of the creeks, and that the high water in the creeks had never interfered with the effective operation of the lease. They testified that, according to the survey made by them, when the water and oil is raised against the proposed dam, as gauged by the spillways to be made therein, it would not be higher against the dam than two feet above low-water level. Also that the two-foot raise would cause the water to back toward and not closer than within 50 feet of well No. 6 in the southeast corner of said leased lands. Also that the high-water line around well No. 6 coincides with the level of two feet of water in the dam. Also that the construction of the dam would not interfere with the passageway appellees had .constructed over the upper creek to go to and come from wells 5 and 7, in the northeast comer of the leased lands, and would not interfere with the pipe lines used to convey oil from wells 5 and 7. They testified that they were unable to find the pipe lines leading from wells 5 and 7, but that if they were lying on the bottom of the creek they could easily be jacked up after the dam was built to make necessary repairs upon them.
The witnesses introduced by. appellee testified that the construction of the proposed dam would back the water over well No. 6 and wash out the foundation under the derrick. Also that the water would back over the walkway ¡across the upper creek and cover the pipe lines lying on the bottom of the creek through which oil was carried from wells Nos. 5 and 7.
The testimony was also conflicting between the two sets of witnesses as to whether the pick-up station made by the construction of the said dam would increase the fire hazard on the leased premises. Eighteen wells had been drilled upon the 80-acre tract which appellants leased to appellees, and fourteen of them were producing oil in commercial quantities when the construction of the dam wias commenced.
It may be said, in passing, that the witnesses introduced by the respective parties were men of broad experience in the oil fields. It could serve no useful purpose to set out the substance of the testimony of each. The record is voluminous, and it would extend the opinion to an unusual leng-th to do so. The testimony of each witness has been carefully read and ¡analyzed, and a majority of the court is of opinion that the chancellor’s finding to the effect that the construction of the dam will interfere with the effective operation of the lease is correct, and is supported by the weig-ht- of the evidence. Mr. Justice Woon and the writer are of the opinion that the construction of the dam will not interfere with the effective operation of the lease.
The decree is therefore affirmed. | [
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Smith, J.
Appellee, in his own right and as administrator of the estate of Rudolph Jackson, his son, instituted this suit to recover damages on account of the death of his son, who met his death while in the employ of appellant on the 31st day of January, 1923.
Deceased, at the time of his death, was eighteen and a-half years old, and had been employed by the defendant light and power company as an electrician for about two years. The testimony shows that deceased was a promising young man, who had had a course" in an electrical school, and who, because of his training and experience, was considered a very valuable employee. At the time of his death he, with other employees, was engaged in completing- the installation of a transformer substation for the appellant company at Malvern, Arkansas. Deceased had been engaged in the construction and installation of this job for about a month prior to his death. The transformer'substation at Malvern, it was shown, is constructed by use of cedar poles or creosoted pine, which are approximately thirty-five feet in height and placed in the ground to the depth of six feet. These poles are arranged in rows of three each. The transformers are between said poles, resting upon concrete pedestals up above the ground some distance. The whole equipment consists of the poles, transformers and air-brakes. The air-brake switch is located on top of the poles twenty-five feet above the ground. There is a galvanized rod extending from near the switch at the top of the poles down to near the ground. This rod, in some way, articulates with the switch on top of the poles. To this rod is attached, at or near the bottom, an iron socket, into which socket a wooden handle is placed to open or shut the switch at the top. To open the switch you pull down on the switch handle. To close the same you pull up on the switch handle. The instant the switch is open, the current is shut off. The switches are covered with heavy porcelain insulators, and are of standard make.
On the day the fatal accident occurred, the employees, including the deceased himself, were making some adjustments of a minor nature, preparatory to the completion of the installation job at Malvern. Jackson was directed to throw one of the switches in order to cut off the current. He had done this before, and was familiar with the operation of the instrument used' for that purpose. In opening the switch he stood upon earth, which was damp, and which some of the witnesses referred to as muddy. The order to open the switch was given by the foreman, and was executed in the latter’s presence, and, when Jackson took hold of the wooden handle placed in the socket attached to the galvanized rod and pressed down the handle, thereby opening the switch to cut off the current, he fell instantly in his tracks to the ground. Medical attention was had at once, and the attending physician made strenuous efforts to revive Jackson, and, although his heart continued to beat for about an hour, he was never revived, and never regained consciousness. It is the theory of the defendant that, as Jackson fell, he struck his head against a timber lying on the ground; but the question iii the case is, what caused him to fall?
The testimony on the part of the defendant is to the effect that Jackson was not electrocuted. According’ to this testimony, the mechanism was in perfect order. There was only one way to operate the lever in opening or closing the switch, and it was operated in that manner by Jackson, and this manner was safe and free from danger. In other words, according to the testimony on behalf of defendant. Jackson was not electrocuted, and could not have been.
But he was killed; he dropped in his tracks, and would, no doubt, have died in a few moments but for the efforts to resuscitate him. The doctor who attended Jackson testified that he was familiar with electrical burns, and expressed the opinion that Jackson had been electrocuted. He testified that he found a discoloration on the back part of Jackson’s neck, beginning on the right side and extending down the spine. He also testified that he found a bump on the back of Jackson’s head, but he did not attribute death to that cause, as there had been no hemorrhage such as would have followed from a blow of sufficient force to have produced the condition in which he found Jackson. There was also testimony to the effect that the glove which Jackson wore when he opened the switch was burned.
The case made for the jury may be summed up as follows: There was no testimony that Jackson had manipulated the lever in an improper way, and the defendant’s testimony was to the effect that the mechanism which he operated was perfectly safe, and that he could not have been electrocuted by merely opening the switch, yet the testimony on the part of the plaintiff abundantly supports the theory that Jackson was electrocuted.
The court gave, over the objection of the defendant, an instruction numbered 7, which reads as follows: “You are instructed that, where injury or death is caused by a thing or instrumentality that is under the control or management of the defendant, and the injury or death is such that, in the ordinary course of things, would not occur if those who have such control or management use proper care, the happening of the injury is prima facie evidence of negligence, and shifts to the defendant the burden of proving that it was not caused through lack of care on defendant’s part.”
The applicability of this instruction presents the ' real question in the case.
In the casé of Chiles v. Fort Smith Commission Company, 139 Ark. 489, we quoted cases holding that, while the doctrine of res ipsa loquitur had ordinarily been applied in suits against carriers, there was no sound reason for limiting it to such cases, and that the presumption expressed by that maxim originates from the nature of the act causing the injury, and not from the nature of the relation between the parties, and that the presumption arises from the inherent nature and character of the act causing the injury. We there quoted with approval from § 156 of the chapter on Negligence in 20 R. C. L., the following statement of the law: “More precisely the doctrine res- ipsa loquitur asserts that, whenever a thing which produced an injury is shown to have been under the control and management of the defendant, and the occurrence is such as, in the ordinary course of events, does not happen if due care has been exercised, the fact of injury itself will be deemed to afford sufficient' evidence to support a recovery, in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care. # * The presumption of negligence herein considered is, of course, a rebuttable presumption. It imports merely that the plaintiff has made out a prima facie case which entitles him to a favorable finding, unless the defendant introduces evidence to meet and offset its effect. And, of course, where all the facts attending the injury are disclosed by the evidence, and nothing is left to inference, no presumption can be indulged — the doctrine res ipsa loquitur has no application.”
See also Choctaw, O. & G. R. Co. v. Doughty, 77 Ark. 1, which was a suit by the servant against the master.
The case of Southwestern Tel. & Tel. Co. v. Bruce, 89 Ark. 581, was a suit by a carpenter who was engaged in repairing a barn, but was not employed by the telephone company. One of the company’s wires broke and burned the plaintiff, and he sued for damages. There was no satisfactory explanation of the cause of the injury. It was there said:
“And, where the defendant owes a duty to plaintiff to use care, and an accident happened causing injury, and the accident is caused 'by the thing or instrumentality that is under the control or management of the defendant, and the accident is such that, in the ordinary course of things, it would not occur if those who have control and management use proper care, then, in the absence of evidence to the contrary, this would be evidence that the accident occurred from the lack of that proper care. In such case the happening of the accident from which the injury results is prima facie evidence of negligence, and shifts to the defendant the burden of proving that it was not caused through any lack of care on its part (Cases cited). -
“Now, this rule applies, to electric companies in the control and management of their lines and apparatus, for the further reason that they have almost exclusive knowledge of the facts relative thereto. The plaintiff ordinarily has’not the power or opportunity to test these lines and apparatus; and it is reasonable that the party having the power and opportunity should be required to give an explanation of the accident, and to prove that it did not occur through a lack of care on its part” (Cases cited).
. We think the doctrine of that case is applicable here. If there had been testimony that Jackson was injured by the negligent or improper manipulation of the lever, the doctrine would be inapplicable, but it is not contended that he was. If Jackson was electrocuted, and the other instructions required that the jury should so find before returning a verdict for the plaintiff, there was a cause for it other than the manner in which Jackson operated the lever. His act in so doing would not have caused his death if there had not been something wrong somewhere. The plaintiff had no opportunity and was not required to test the line and the apparatus conveying the deadly current. These were under the control and management of the company, and the conditions were therefore present which make the doctrine applicable.
This instruction does not tell the jury there was a presumption of negligence from the mere occurrence of the injury, nor did it relieve the plaintiff from the burden of proving negligence. The burden of proof to estab lisli negligence was on the plaintiff, and the instruction did not shift this burden. Under the undisputed evidence the deceased was guilty of no negligence, and no attempt was made to show that he was guilty of any negligence.
The instruction required the jury to find that the instrumentality which caused deceased’s death was under the control or management of the defendant; and, further, that no injury would have occurred if the defendant, having the control and management of the appliance, had used proper care; and declared the law to be that,’this having been proved, the plaintiff had prima facie discharged the burden of proving negligence; and, having thus shown prima facie that the injury would not have occurred but for the defendant’s negligence, the burden then shifted to defendant to account for the cause of the injury' by showing that its negligence was not responsible for it.
. The doctrine of res ipsa loquitur does not relieve the plaintiff of the burden of proving negligence; it merely declares the conditions under which a. prima facie showing of negligence has been made, and, where this has been done, the defendant having the custody and control of the agency causing the injury and the opportunity to make the examination to discover the cause, must furnish the explanation which this opportunity affords to overcome the prima facie showing made by the plaintiff. Such is the purport of the instruction, as we understand it, and no error was committed in giving it under the facts of this case.
It is urged that a verdict should have been directed for the defendant on the ground that the cause of Jackson’s death was a mere matter of speculation and ■conjecture. But we think it sufficiently appears from the facts herein recited that the jury might have found that Jackson was electrocuted, and that this was done by some agency or instrumentality under the control and management of the defendant, and a case was therefore made for the jury.
Some other questions are presented that involve the application of the law in regard to master and servant which we do not think require discussion.
Finding no error, the judgment is affirmed. | [
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Humphreys, J.
This suit was brought by appellants on June 1, 1937, against appellees in the circuit court of Arkansas county, northern district, to recover an alleged balance due on a $2,500 note executed by appellees to Robert M. Foster, referred to in the testimony and briefs as Judge Foster, on April 14,1928, payable on January 1, 1930, bearing interest at the rate of eight per cent, per annum from date until paid. The admitted payments and credits on the note evidencing same did not include a $500 payment claimed by appellees as a set-off in their answer to the complaint as follows :
“That they (appellees) aided and assisted the said Robert M. Foster in making a sale of a piece of land in Prairie county, Arkansas, to Steve Shimek and that for their (appellees’) services in assisting and making sale of said land the said Robert M. Foster agreed and bound himself to place to their credit the sum of $500 upon said note, but that no part of same has ever been credited to them (appellees).”
Appellants filed the following reply to the set-off: “They deny that Robert M. Foster ever entered into a contract with the defendants (appellees) or either of them with regard to the sale of any land whatsoever, and deny that defendants (appellees) or either of them are entitled to a credit of $500 and deny that the said Robert M. Foster is indebted to the defendants (appellees) in said sum of $500 or any other sum whatever. Further answering the plaintiffs (appellants) plead the three years statute of limitations as a bar to defendants’ (appellees) right to recover herein.
Appellants introduced the note sued on and also the following stipulation, and rested:
“1. That Robert M. Foster died testate on November 1, 1930, and that the St. Louis Union Trust Company of St. Louis, Missouri, was duly appointed executor under the will of the said Robert M. Foster on November 7, 1930, and is the duly qualified and acting executor under said will and estate.
“2. That Lizzie L. Foster is the owner and holder of the note sued on. ”
“3. Appellees then offered to prove by-C. E. Ham-mans an oral contract and agreement they had with Robert M. Foster relative to the set-off claimed by appellees to the note sued on, over the objection and exception of appellants on the specific ground that the evidence was not admissible or competent under § 5154 of Pope’s Digest, which is as follows: “In civil action, no witness shall be excluded because he is a party to the suit or interested in the issue to be tried. Provided, in actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statements of the testator, intestate or ward, unless called to testify thereto by the opposite party. . . -
On. account of the stipulation to the effect that Lizzie L. Poster is the owner and holder of the note the court ruled that the statute was not applicable-, permitted the witness to testify and. thereafter tried the suit as one brought by her to recover on the note.
The testimony of C. E. Hammans on direct and cross-examination is quite lengthy and to set it out in full would unduly extend this opinion, but the substance thereof, stated in the most favorable light to appellees, is to the effect that Judge Poster owned a farm near a farm owned by appellees. Judge Poster wanted to sell the farm to appellees, but appellees did not want to buy same. Appellee, C. E. Hammans, undertook to help Judge Poster make a sale of his farm. He was not a real estate agent .and did not have the farm listed with him, but for his assistance in making the sale of the farm Judge Poster told Hammans he would pay him $500- if he succeeded in selling it for the price he wanted. Judge Poster stated what he wanted for the farm, and appellee saw Steve Shimek who wanted to buy the farm. Appellee took Judge Poster up to see Shimek several times and they completed the deal. The contract for the sale and purchase of the farm was entered into in the summer of 1929 and the deed was made by Judge Poster’s wife, Lizzie L. Poster, after Judge Poster’s death. The deed bears date March 14, 1936. After the contract for the sale and purchase of the land was made Judge Poster offered to pay appellee, C. E. Hammans, $500 and offered to pay it in cash, but appellee, O. E. Hammans, said to him, “No, dad and I owe you a note and you just credit it on the note, ’ ■ which Foster agreed to do, notwithstanding C. E. Hammans had made no charge against him for assisting him in making the deal. Judge Foster overlooked entering the credit on the note like he had done with reference to several other payments, for example, a cash payment of $394.44 and lumber in the amount of $240.47 which had been delivered to him.
The cash and credit payments referred to above were entered on the note by the executor, St. Louis Union Trust Company, after Judge Foster’s death, upon proof by appellees that payments had been made.
In addition to the testimony of C. E. Hammans, the will of Foster was introduced in which he gave all his property to his wife, Lizzie L. Foster, for and during her lifetime to use the income therefrom with the right to sell, exchange, lease or reinvest as she might deem best.
Other testimony was introduced to the effect that after Judge Foster died appellees had considerable correspondence with the St. Louis Union Trust Company relative to credits which should have been entered upon the note, but none of the letters or any of the correspondence contained the claim by appellee for the $500 credit in question. The original note was introduced showing that same had been assigned to Lizzie L. Foster by the St. Louis Trust Company without recourse on it and also showing a large number of credits which had been entered subsequent to the death of Judge Foster who had died on November 1, 1930, and according to the statement made by the St. Louis Union Trust Company as of date January 15,1941, the balance due on same, total interest and principal, was $1,661.27, but no credit appeared for the $500 claimed by appellees for assisting him in selling his farm to Shimek.
At the conclusion of the testimony, appellant, Lizzie L. Foster, requested the court for a peremptory instruction for judgment in her favor for $1,661.27.
The court refused to instruct a verdict for that amount and submitted the cause to the jury upon the pleadings, the testimony introduced and the following instruction, over the objection and exception of appellant, Mrs. Lizzie L. Poster, to-wit:'
“Gentlemen of the jury, the only question is the item of $500. If you find from the testimony that this note is in the hands of the administrator, then the plaintiffs would be entitled to recover the full amount sued for, because they cannot offer testimony against the administrator, but if you find from the testimony that the note is owned and in the possession of Lizzie L. Poster, then the evidence would be competent. They set up a plea of the statute of limitations in this case — that is they contend that the amount Mr. Hammans claims is barred by the three-year statute of limitations; that it was not credited on the note — that they did not make any agreement with Mr. Hammans to pay him $500. Those are questions of fact for you to determine under the testimony in this case. If you are convinced, by a preponderance of the testimony in this case that Mr. Poster did agree to pay $500 and that it should have been credited within the time equal to three years from the time of this agreement, and he failed to credit it; then the defendants would be entitled to that credit. The burden is upon the defendants to show that by a preponderance of the evidence; if you find for the plaintiff or the plaintiffs, there are two plaintiffs, Union Trust Company, administrator, and the wife of the deceased, Mrs. Poster, you can find for both plaintiffs or you can find for Mrs. Poster, one or the other, or both for such sum as you think defendants owe. The only question involved is whether or not the defendants are entitled to this $500 credit on this note. If nine of you agree upon a verdict, you will all nine sign the same, but if all twelve of you agree upon a verdict, only one of you will sign same as foreman.”
After consideration and deliberation the jury returned the following verdict: “We, the .jury, find for the defendant in the following sum, credit for the $500 claimed plus interest at 8 per cent, from January 1, 1932. We also find that the note in question is the property of Mrs. Robt. M. Poster, and she is entitled to recover the amount sued for less credits shown on the note and the $500 with 8 per cent, interest from January 1, 1932. Louis K. Buerkle, Foreman. ’ ’
Pursuant to the verdict the court rendered the following judgment: “It is, therefore, considered, ordered and adjudged by the court that the plaintiff, Lizzie L. Foster, do have and recover of and from the defendants, G. E. Hammans and C. E. Hammans, and either of them and each of them the sum of $884.42, same being the amount due her after deducting the sum of $500 mentioned in said verdict, plus interest thereon at 8 per cent, from January 1,1932.
“It is further adjudged that the said sum of $882.42 bear interest from this date at the rate of eight per cent, per annum until paid.
“It is further adjudged that said plaintiff have and recover of and from said defendants and each or either of them all costs herein expended and further ordered that execution issue for said sums.”
From the judgment an appeal has been duly prosecuted to this court.
Appellant, Lizzie L. Foster, contends for a reversal of the judgment on the ground that the conrt erroneously admitted the testimony of C. E. Hammans for the reason that under § 5154 of Pope’s Digest one is not permitted to testify to any transactions with or statements of a testator, claiming that the instant snit is a suit by the executor or administrator of the estate of Robert M. Foster, deceased. The undisputed testimony in the case is to the contrary. It is true the St. Louis Union Trust Company, as executor of the last will and testament of Robert M. Foster, deceased, was made a party plaintiff in the original suit, but the undisputed testimony shows that the St. Lonis Union Trust Company as executor has no further interest whatever in the note sued upon .and did not have at the time this suit was instituted. The note was assigned by it without recourse to Lizzie L. Foster and under the stipulation entered into by the attorneys for the parties it was agreed, “that Lizzie L.'Foster is the owner and holder of the note sued on.” Since the St. Louis Union Trust Company had no interest either in the note or in the lawsuit and was only a nominal party and could not be affected by the litigation, the court properly admitted the testimony of C. E. Ham-mans with reference to the contract he had with Judge Foster in his lifetime. We think the ruling of the court that the testimony of C. E. Hammans was admissible under the facts in this case is supported by the cases of Walden v. Blassingame, 130 Ark. 448, 197 S. W. 477; Brown v. Brown, 134 Ark. 380, 203 S. W. 1009; Swinton v. Cuffman, 139 Ark. 121, 213 S. W., 409; and the later case of Robb v. Woolsey, 175 Ark. 43, 295 S. W. 13.
Appellants also contend that the judgment should be reversed because even if the testimony was admissible it does not show that there was any consideration to support the claim of $500 for assistance rendered Judge Foster in making the sale of his land to Steve Shimek.
Judge Foster told O. E. Hammans that if he would sell the property for him he would give him $500,. We do not think this meant that he would make him a present for selling it. Appellants argue that the offer to pay $500 was in the nature of and amounted to no more than the promise of a gift and that in order for a gift to be good it must be an executed gift. It is true that delivery is an essential both in law and in equity to the validity of a gift and cases are cited by learned counsel for appellants to that effect. Of course, if the testimony only showed the promise of a gift to be delivered in the future, it would be uninforceable, but we think the jury was warranted in finding that this was not a promise for $500 in the way of a gift to be delivered in the future. The testimony is susceptible of the construction that Judge Foster absolutely agreed to pay him $500 in case he found a purchaser and sold the farm for the amount he wanted for it. According to the testimony C. E. Hammans did find a purchaser and did take Judge Foster to the purchaser and they did enter into a contract for the sale and purchase of the farm. It also appears from the evidence that Steve Shimek paid all the purchase money and in 1936 received a deed to the farm from the wife of Judge Foster who acquired the right to make the deed under the provisions of the will of Judge Foster. This was not .all, after the contract for the sale and purchase of the farm was executed Judge Foster offered to pay C. E. Hammans $500 in cash and would have done so, hut C. E. Hammans told him that he and his dad owed Judge Foster a note and to credit the amount of $500 on the note, which Judge Foster agreed to do. We do not think the failure of Judge Foster to enter the credit on the note in any way invalidated the payment of $500 thereon, the consideration constituting the payment on the note for services which C. E. Hammans had rendered to Judge Foster. The transaction was completed when the services were rendered and Judge Foster offered to pay C. E. Hammans $500 in cash and was told instead of paying it over to credit it on a note. It is-said in 3 R. C. L., p. 1284, par. 517, that: “A memorandum of a partial payment indorsed by the holder on the back of a promissory note is neither a contract nor any part of a contract, but a mere acknowledgment, in the nature of a receipt. . . .”
Appellant, Lizzie L. Foster, also contends that C. E. Hammans, in assisting Robert M. Foster in the sale of his farm, was acting as a real estate agent and not entitled to charge Judge Foster any commission because he, C. E. Hammans, had not complied with the provisions of Act 148 of the Acts of the General Assembly of 1929. This act was in effect at the time the transaction occurred between O. E. Hammans and Judge Foster and § 1 of the act is as follows: “It shall be unlawful for any person, firm, partnership, copartnership, association or corporation to act as a real estate broker or real estate salesman in Arkansas or to advertise or to assume to act as such real estate broker or real estate salesman without first having complied with every provision of this act and having secured a regular, valid license issued by the Arkansas Real Estate Commission authorizing the performance of such acts.” Act 148 also contains the following provision: “No recovery may be had by any broker or salesman in any court in this state on a suit to collect a commission due him unless he is licensed under the provisions of this act and unless such fact is stated in his complaint. ’ ’
The statute referred to above was not invoked by appellants as a defense in the court below. In other words, it is raised as a defense for the first time in this court. This court ruled iu the case of Bolen v. Farmers’ Bonded Warehouse, 172 Ark. 975, 291 S. W. 62, (quoting syllabus 3) that: “Issues not raised by the pleadings nor by requested instructions will not be considered on appeal.”
We cannot agree with the learned attorney for appellants that he raised this question in the lower court by asking for a peremptory instruction.
No such issue was raised below either by the pleadings or by request for instruction and appellant is precluded from raising it upon appeal to this court.
Lastly, appellants contend that-the judgment should be reversed because the set-off is barred by the three-year statute of limitations. Pope’s Dig., § 8928. This is not a separate suit for a commission on the sale of real estate earned in 1929, but it is pleaded as a set-off against a note which appellees owe to appellant, Lizzie L. Foster, which is permissible under the rule announced in Missouri & N. A. Ry. Co. v. Bridewell, 178 Ark. 37, 9 S. W. 2d 781, and Stephens v. Springfield Business College, 144 Ark. 641, 215 S. W. 622.
Further, we do not regard the plea of the statute of limitations as applicable in closed transactions. We think the transaction in question was closed when' Judge Foster accepted the services of O. E. Hammans in effecting the sale of his farm and when Judge Foster agreed to pay and offered to pay C. E. Hammans $500 for assisting him in making the deal. Being a closed and completed transaction, there was no outstanding claim for the statute to run against.
Finding no error, the judgment is in all things affirmed. | [
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Hart, C. J.,
(after stating the facts). Counsel for the plaintiff insists that the undisputed evidence shows that the motor-bus of the plaintiff sustained substantial injury in the collision, and that a judgment based upon the verdict for nominal damages should be reversed because they were inadequate. Counsel for the defendant concede that the judgment should be reversed, and the parties only differ as to the method of procedure after the reversal of the judgment. Counsel for the plaintiff insists that the verdict as to damages should be set aside and a new trial ordered on the question of damages only. On the other hand, counsel for the defendant insists that, under our practice, when the verdict is. set aside a new trial of the whole case should be granted. There is some conflict in the authorities as to whether, -where a verdict has been set aside as being inadequate, the new trial may be restricted to the question of damages or whether there should be a new trial of the whole case. The practice in this State has been, when a verdict is set aside as ibei-ng inadequate, to set aside the verdict on that account and grant a new trial in the whole case. The reason is that a verdict as the foundation of a judgment at law is an entity and cannot be divided by the trial court. Dunbar v. Cowger, 68 Ark. 444, 59 S. W. 951; Carroll v. Texarkana Gas & Electric Co., 102 Ark. 137, 143 S. W. 586; Bothe v. Morris, 103 Ark. 370, 146 S. W. 1184; and Martin v. Kramer, 172 Ark. 397, 288 S. W. 903.
In the case last cited it was held that, where the undisputed evidence showed that plaintiff’s automoibile was damaged in the sum of $47 in a collision, hut the evidence was conflicting as to responsibility, a judgment for one dollar was inadequate, justifying a new trial. It follows that the judgment will he reversed, and the case remanded for a new trial. | [
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Wood, J.
This is an action by the appellee on a fire insurance policy issued to the appellee by the appellant, in which the appellant undertook to indemnify the appellee against loss or damage by fire to a seven-passenger touring car. The car was totally destroyed by fire while the policy was in force, and the appellee alleged that he had fully complied with the terms of the policy on his part, and prayed judgment in the sum of $500 and for penalty and costs.
The appellant admitted the issuance of the policy and the loss, but set up in defense that the policy contained a loss-payable clause in favor of the mortgagee of the car, Karakoffe Motor Company, which clause con tained a promissory warranty or condition that the policy should ibe wholly void if any of the notes due the mortgagee should not be completely paid on or before ten days after the maturity thereof, or if any change be-mad'e in any of the notes representing the incumbrance otherwise than by the payment thereof. The appellant alleged that, at the time the car was destroyed by fire, said notes due the mortgagee were past due and unpaid for more than ten days' after maturity, and therefore the policy was void as to the appellee. Appellant further alleged that the mortgagee had been paid the amount of appellee’s indebtedness to it.
The appellee testified, among other things, as follows : “I paid a premium of $14.75 for the policy. When the notes became past due I had made arrangements with the Karakoffe Motor Company about when I was to pay them. This was before the car burned. I did not tell the insurance people anything about these arrangements made with the Karakoffe Motor Company, until after the car burned. I did not notify them of the arrangements to extend the notes? at the time they were made. I notified them, after the car had burned, to collect the money.” The appellee identified and introduced the policy which recites that, in consideration of the warranties and the premium mentioned, it insured the automobile described therein to an amount not exceeding the amount specified therein.
Under the title “warranties” in the policy, the policy contains the recital that “the following are statements of facts known to and warranted by the assured to be true, and this policy is issued by the company relying upon the truth thereof.” Then follows, among other things, a loss-payable clause, in which it is recited that the appellee owed a balance on the purchase price of the automobile of $350, evidenced by seven notes of $50 each, payable on the 22d day of each month, beginning with July, 1922, and reciting that the policy “shall be wholly void if any of such statements is inaccurate in any respect, or if any change is made in any of the notes representing said indebtedness or incumbrance otherwise than by payment thereof. * * * Or if' any of said notes shall not be completely paid and the indebtedness represented wholly discharged on or before ten days after maturity thereof, without grace.” There was the further provision in the loss-payable clause to the effect that the interest of the owner of the notes only shall not be invalidated by the failure of the assured to pay any of the notes within the time specified, and, in such case, the liability of the company under the policy shall be to the Karakoffe Motor Company only, and limited to the amount of the principal and interest then unpaid on said notes. There is a further provision to the effect that the policy is made and accepted subject to the provisions, exclusions, conditions and warranties set forth herein or indorsed hereon, and that the insured agrees that its terms embody all agreements then existing between himself and the company.
The testimony on behalf of the appellant was to the effect that the Karakoffe Motor Company sold the automobile to the appellee, the entire consideration being the sum of $850. The company took a mortgage for the balance due on the purchase money, $350, evidenced by notes in the sum of $50 each, payable in seven installments. The first one or two notes were paid as they fell due. At the time the car burned three of the notes were unpaid. The company extended the time for payment of one or two of the notes, and did not notify the insurance company of the extension. The insurance company inserted a loss-payable clause in the policy at the time it was issued. The insured knew that such clause was in the policy. The premium of $14.75 was paid, and carried the policy for a year. The premium was not reduced by reason of the fact that the loss-payable clause was inserted.
The court gave instructions as to the burden of proof and the credibility of witnesses, and refused to grant appellant’s prayer for instructions as follows:
“1. The jury is instructed to return a verdict for the' defendant.
“2. You are instructed that, unless you find by a fair preponderance of the evidence that the plaintiff, Lee Avant, paid the indebtedness of $350 owed to Karakoffe Motor Company, as the same became due and payable, you will find for the defendant.
“3. You are instructed that, under the terms of the policy, the plaintiff agreed to pay $50 a month on the 22d day of each month, beginning July, 1922, to the Karakoffe Motor Company, and agreed that the policy would be wholly void if these notes were not paid as due, or if any change is made in any of said notes, you are instructed that if the notes were not paid as they matured, or if any extension were granted on any of the notes, the policy is void as to the plaintiff, and you will find for the defendant.”
The appellant duly excepted to the ruling of the court in the refusal of these instructions.
The jury returned a verdict against the appellant for the amount of the policy, less the amount paid the Karakoffe Motor Company, in the sum of $340.56. The court entered a judgment in favor of the appellee for that sum, from which is this appeal.
The policy, according to its recitals, was issued "in consideration of the warranties and premium hereinafter mentioned.” Under the title ‘‘Warranties” the loss-payable clause is expressly referred to. These and other references elsewhere in the policy expressly make the loss-payable clause a part of the policy, and the undisputed evidence shows that the mortgage or loss-payable clause was attached to the policy at the time it was issued, and that the insured knew that it was .so attached. In the absence of any proof of fraud in the insertion of this loss-payable clause, it must be considered a part of appellee’s contract of insurance, and its provisions given full force and effect as such, even if the appellee had not examined these provisions. Lancaster v. Southern Ins. Co., 153 N. C. 285; Quinlin v. P. & W. Ins. Co., 133 N. Y. 356-364; Cleaver v. Ins. Co., 171 Mich. 414-417; Morrison v. Ins. Co. of N. A., 69 Tex, 353. See also Colonial & U. S. Mortgage Co. v. Jeter, 71 Ark 185.
In 14 R. C. L., at page 1082, § 260, a promissory warranty is defined to be “an absolute undertaking by the insured, contained in a policy or in a paper properly incorporated1 by reference, that certain facts or conditions pertaining to the risk shall continue, or that certain things with reference thereto shall be done or omitted.” According to this definition, the clauses “or if any change is made in any of the notes,” etc., “or if any of said notes shall not be completely paid and the indebtedness represented wholly discharged on or before ten days after maturity thereof without grace,” etc., are promissory warranties.
The crux of the case is whether or not these warranties are violated by any change in, or by the nonpayment of, some of the notes at the time they were due, or within the ten days of grace thereafter, as specified in the warranties. The words “maturity thereof without grace” should be construed as meaning the time specified by the parties to the mortgage when the notes should be paid, and if, when the notes became due, the mortgagee extended the time for their payment, then the time fixed by the extension agreement for the payment of the notes would 'be the time of maturity of such notes. The words in the clause, “if any change is made in any of the notes representing said indebtedness or incumbrance,” necessarily meant some change that would be detrimental to the insurer. The parties to the contract of insurance could not have meant that immaterial changes, or changes that did not affect the risk, were included in the contract. See Providence Life Assurance Society v. Reutlinger, 58 Ark. 528; Mutual Reserve Fund Life Insurance Co. v. Farmer, 65 Ark. 581; Des. Moines Life Ins. Co. v. Clay, 89 Ark. 230.
Under the construction we give the policy, the extension of the time for the payment of the notes was not a change in the notes, but, if so, certainly not a material change. So far as the insurer was concerned, its purpose was to preserve the conditions that existed at the time of the issuance of the policy, and to have the policy so framed that it would be warranted against any change in the notes representing the indebtedness that would affect the risk to its prejudice.
Now, the undisputed testimony shows that the conditions surrounding the parties to the contract when it was entered into were not changed to the prejudice of appellant by the agreement for the extension of the time for the payment of the notes between the mortgagee and the appellee. On the contrary, the mortgage debt at the time of the fire had been reduced by payments from the sum of $350 to the sum of $160. It is a well-settled principle in the law, and one often announced by this court, that forfeitures are not favored, and slight circumstances will be seized upon to avoid them, and any ambiguous provisions, especially in contracts of insurance, must be construed most strongly against the insurance company, because it prepared the policy. Sun Ins. Co. v. Jones, 51 Ark. 376; Ark. Fire Ins. Co. v. Wilson, 67 Ark. 553; Hope Spoke Co. v. Maryland Casualty Co., 102 Ark. 1; Monongahela Ins. Co. v. Batson, 111 Ark. 167; Maloney v. Maryland Casualty Co., 113 Ark. 171.
As is well said in Clay v. Phoenix Ins. Co., 97 Ga. 44-52, “courts are not at liberty to arbitrarily disregard reasonable limitations imposed upon the liability of insurance companies under policies of insurance, by stipulations and conditions therein expressed; but, in the construction of such policies, and such conditions and stipulations, the courts will look through the whole contract to the real intention of the parties at the time of the execution of the instrument, and give to it such construction as will impute to them a reasonable intendment, and such construction as will relieve against forfeitures, if that construction be consistent with the g’eneral intent expressed in the policy. ” Providence Life Assurance Society v. Reutlinger, 58 Ark. supra.
If the appellant intended that the language of the warranty should embrace immaterial as well as material changes, it should have so declared in the contract, and, if it intended that there should be no extension of the time for the payment of the notes beyond the due date and the ten days thereafter specified, it should have in plain terms so declared. In that event, nothing would have been left for construction, but, under the terms of the policy and the undisputed testimony, we are convinced there are no errors prejudicial to the appellant in the rulings of the trial court, and that there has been a substantial compliance with the terms, conditions and warranties of such policy upon the part of the assured.
The judgment is therefore affirmed. | [
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Smith, J.
This suit was brought to restrain appellee from removing from an apartment building certain kitchen cabinets, kitchen stoves and refrigerators, the title to which was claimed by appellant apartment company, which company had bought certain lots in the city of Little Rock on which there was an apartment building, consisting of twenty apartments, at a commissioner’s sale. In each apartment there was a kitchen cabinet, a refrigerator, and a gas kitchen cooking stove, which articles were alleged to be fixtures which were acquired under the commissioner’s deed. The sale by the commissioner was under a decree foreclosing a mortgage on the lots, but the alleged fixtures here involved were bought and placed in the .building some months after the execution of the mortgage.
The defendant filed an answer, in which it admitted that plaintiff had bought the apartment building, in which the articles alleged to be fixtures were located, at a commissioner ’s sale, and that it was the owner of the record legal title to the lots on which the apartment building stood, and that it had, as alleged in the complaint, executed a quitclaim deed to these lots to the plaintiff. It appears, however, that the quitclaim deed was executed after a conference for the purpose only of clearing up the title conveyed by the commissioner under the decree foreclosing the mortgage and to clear up a controversy which had arisen as to the payment of a premium on a fire insurance policy o.n the building, and that no question was made at the time of the execution of the quitclaim deed about conveying the stoves, etc., as fixtures, and that the grantor in this quitclaim deed had no such intention. Defendant asserted ownership of the alleged fixtures, in its answer, for the reason that they were no part of the apartment building, and were not embraced or included in the quitclaim deed.
The architect who erected the apartment building, and who owned an interest therein at the time of its erection, testified that the contract for the erection of the building did not include the stoves, etc., and that, when a building contract included such articles as fixtures, they were shown on the plans of the building, and the alleged fixtures here involved were not included in the plans.
V. N. Carter, who at one time owned the building, and who installed the stoves, etc., testified that it was not a fact that all apartment buildings have the equipment here involved, and that he rented one apartment in this building to a tenant who furnished his own stove, and that he himself occupied one of the apartments for a time, during which he also furnished his own stove.
By stipulation signed by the parties the value of the equipment here in litigation was agreed upon.
The court found for the plaintiff for the stoves and for the defendant for all the other property, and the plaintiff appealed, and the defendant has perfected a cross-appeal.
It appears that the stoves were fastened to the gas-supply pipes by a screw, which could be detached by any one by merely unscrewing it, and that doing this would inflict no damage whatever to the building, and would, in fact, leave no evidence that it had been done. The other articles were not in any manner attached to the floor or walls of the building’. There appears therefore no distinction in regard to the ownership of the equipment, except that the stoves were screwed to the gas-supply pipes and that the other articles were not in any manner attached to the building.
"We are of the opinion that this circumstance is not sufficient to distinguish thé ownership of the stoves from the other articles. In other words, the plaintiff acquired all the property here involved by the commissioner’s deed or none of it, and the title to all of it depends upon the intention of the parties at the time of its installation in the building.
The law appears to be that, where an intention is shown on the part of the parties interested to make articles of personalty permanent parts' of the building in which they are installed, and where those articles serve a distinct and particular purpose, intimately and necessarily related to the use and purpose for which the building was constructed, they become a part of the realty, and the title thereto passes by ¡a- sale of the building. The law on the subject was discussed and the authorities reviewed in the recent case of Stone v. Suckle, 145 Ark. 387, 224 S. W. 735. No useful purpose would be served by again reviewing these authorities.
The case of Hanson v. Vose, 144 Minn. 264, 175 Minn. 113, 7 A. L. R. 1573, contains an annotator’s note on the specific subject of “Gas Range as Fixture,” and it is there said that: “The rule adopted in a majority of the decisions is that a gas range, when installed in a dwelling- and connected with a supply-pipe, does not thereby become a fixture, although it may become such by agreement between the parties.” The annotator’s note reviews a number of cases on the subject. A more extended note on the same subject is found appended to the case of Gauche Realty Co. v. Janssen, 158 La. 379, 104 So. 132, 39 A. L. R. 1042.
The testimony shows that the equipment had not been installed when the mortgage was executed through and under the foreclosure of which the plaintiff claims, and that the quitclaim deed was executed for the purpose only of clearing the title acquired iat that sale and of adjusting the matter of the insurance premium.
The court below evidently found the fact to be that there was no intention that the unattached articles should become fixtures, and this finding does not appear to be contrary to the preponderance of the evidence, but that the stoves had become fixtures because ofi tlieir attachment to the gas-supply pipes. As we have said, this attachment would not operate to make a fixture of the stoves if such was not the intention of the parties. The law is so declared in the annotator’s notes in the cases cited.
It follows therefore that the decree of the court below will be affirmed on the direct appeal and reversed on the cross-appeal, and the bill seeking to enjoin the appellee from removing the equipment will be dismissed as being without equity. | [
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Humphreys, J.
This suit was brought in the second division of the chancery court of Ouachita County by appellant against appellee to quiet and confirm title to 200 acres of land in said county in himself. He alleged that he acquired title to said land by oral gift from Ins wife, Lula Lynn, who was appellee’s sister; that he immediately entered into possession thereof -and had made valuable improvements thereon; that Lula Lynn died in the year 1921, and that appellee was claiming title to said tract of land by inheritance from his'wife.
Appellee filed an answer denying that her sister had made an oral gift and put appellant in possession of the land in her lifetime, and that pursuant thereto he had made valuable improvements thereon. She alleged that her sister died intestate, leaving appellee as her sole and only heir, and, by way of further defense to the alleged oral gift, pleaded the statute of frauds in bar of appellant’s alleged cause of action. -
Appellee also filed a cross-bill as administratrix of the estate of her deceased sister, claiming rents upon the land for the year 1922 and thereafter.
'The cause was submitted to the court upon the pleadings and testimony adduced by the parties, which resulted in a finding that Lula Lynn, in' her lifetime, gave the lands to appellant for and during his life, and a decree dismissing the bill of appellant and the cross-bill of appellee.
From the finding and decree both appellant and appellee have prosecuted an appeal to this court.
In determining the issues presented by this appeal it will not be necessary to set out the testimony at length. A summary thereof will suffice.
Some time prior to 1915, the father of appellee and appellant’s wife, John .Dunlap, died, leaving his widow, Clara Dunlap, and his two daughters, Lula Lynn and Cora- Martin, surviving him, who were the legatees in his will. He devised his home place, consisting of about 600 acres of land* to his two daughters, subject to a life estate therein to their mother, Clara Dunlap. Appellant and his wife moved to the Dunlap homestead for the purpose of taking care of Clara Dunlap.' Appellant assumed the management of the place, and appropriated the income to the use of himself and family. Mrs. Dunlap subsequently died, and the farm was divided in kind between Lula Lynn and appellee. In the division appellee got the house and Lula Lynn 360 acres on the west end of the tract-. Immediately thereafter Cora Martin moved into the old home, and appellant rented the Carter place, near by, until he could build a house on the lands awarded to his wife. They were in debt, and borrowed $500 on 160 acres of the land, which was used to pay the debts and conduct the farm. Appellant took charge and managed the land assigned to his wife just as he had done before the division. He testified that,-while living on the Carter place, his wife gave him the 200-acre tract with the understanding that he would improve and reside upon it, retaining for herself the other 160 acres; that he bought a house for $100, moved it in sections, and put it up on the 200-acre tract which his wife had given him, and, when it had been completed, he and his wife moved . to and resided upon the farm; that, during the time they resided upon it, he expended about $900 in making permanent improvements thereon. In the management of the farm' appellant appropriated the income from the 360-acre tract to the use of himself and family, rendering no separate account to his wife for the income off of the 160-acre tract. Later on they mortgaged the’ 160-acre tract to the Federal Land Bank for $1,250, out of which they paid the $500 mortgage. The balance of the money was used by appellant in conducting the farm "and in making the necessary repairs and improvements thereon. The 360-acre tract remained upon the taxbooks in the name of Lula Lynn, and the taxes were paid by appellant in her name, out of the income from the farm. Appellant testified that he never asked his wife for a deed to the 200-acre tract because he felt a delicacy in-doing so.
A number of witnesses testified to diverse statements concerning the land made by Lula Lynn to them during the time she and appellant resided upon the farm.; Some of them testified that she said she intended to will¿ appellant a life estate in the tract, others that ’she hád' given him a life estate therein, and still others that she had given the land outright to him. Objection was made by appellant to the introduction of statements made by her in his absence reflecting upon his title. We think the evidence was properly admitted, as she was residing upon the land at the time she made the statements. We shall refrain from analyzing this testimony, because, in our opinion, the plea of the statute of frauds is applicable and controlling in this case.
The record reflects that appellant and his wife moved upon the 200-acre tract as soon as the house was ready for occupancy. They moved there at the same time and occupied the premises as husband and wife until her death.- It was a joint possession of husiband and wife, and not an exclusive possession by appellant. In the cáse of Young v. Crawford, 82 Ark. 33, this court adopted the following rule with reference to the sufficiency of a parol gift of lands, announced by Prof. Pomeroy in his work oh Specific Performance of Contracts (2d ed.) § 130: “A parol gift of land will not be enforced unless followed by possession and valuable improvements made by the donee, or unless there are some very special facts which would render the failure to complete the donation peculiarly inequitable and unjust.” -
The possession referred to in this rule means an exclusive possession, for it was said, in the case of Rugen v. Vaughan, 142 Ark. 176, that “the court has held that possession, to have the effect to take the case out of th¿ statute, must be exclusive, evincing the birth of a new estate, and distinguished from the continuation of an old one; and must not be referable to an antecedent right.”
In view of this well settled principle of law, the court erred in finding that appellant had obtained a life estate in the 200:acre tract of land by parol gift from his wife and in dismissing appellee’s' cross-bill for an accounting of rents and profits, after appellee made a d'einahd for the possession of the land. It is not disclosed’just’when this demand was made. The' court properly dismissed appellant’s bill to quiet'his title, and to that extent the decree is affirmed. In all other respects the decree is reversed, and the canse remanded with directions to quiet the'title to the 200 acres in appellee and to place her in possession thereof. Also to ascertain the rental value of the tract after appellee demanded possession of the land from appellant, or,- if she did not demand possession, from the date of the institution of this suit to date, and to render a personal judgment against appellant for the amount. | [
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Griffin Smith, C. J.
Arkansas Workmen’s Compensation Commission ruled in favor of the claimant, widow of Henry Walker, and circuit court affirmed.
Sam Scott, Lundell Plantation foreman whose duty it was to supervise clearing new ground, shot and killed Walker about six o’clock the morning of February 10, 1941. George Brandon, superintendent for E. W. and Raymond Lundell, employed Walker in December, 1940, and assigned him to a “bulldozer” used in the work he had undertaken..
Scott’s explanation was that because of Walker’s inefficiency or indifference, the hourly wage of 75 cents paid during December was reduced to 50 cents January 1. Walker was dissatisfied to such an extent that it was thought best to dispense with his services and employ a substitute more agreeable and more willing. Scott wrote Brandon February 7, outlining Walker’s deficiencies, and was immediately authorized to exercise the right of discharge.
Scott regularly carried a pistol because required to pass through sparsely populated areas before daylight and after dark. The shooting occurred within 30 or 40 feet of L. D. Bellah’s home, near a bridge over a bayou. Scott lived three and a half miles from Bellah. Walker, who occupied an automobile house-trailer, had it stationed back of Bellah’s home, on the west side of the bayou. Scott says that when he left home at five o ’clock he rode to the residence of B. Dees on the east side of the bayou and tied his horse to a post. It required thirty or thirty-five minutes to make the trip. Scott passed the trailer, traversed the bayou bridge, and waited at Dees’ home about five minutes before Walker appeared. He insists that Walker came “right opposite me; whereupon I called to him and said, ‘Mr. Walker, I am going to have to let you go this morning.’ He said, ‘What is the trouble?’ I replied, ‘Your work is just not satisfactory.’ ”
Continuing, Scott testified he then noticed Walker’s voice was quivering; so he turned away and untied his horse, hut did not mount. Walker followed and said, “If you ever ‘fire’ me I am going to beat you to death.” Walker is then alleged to have struck Scott in the month, almost knocking him down. A scuffle ensued and Scott says he was knocked down: — ‘ ‘ I then pulled my gun and told Walker to get off. When I got up I started toward the bayou, with Walker following. He was cursing and threatening to kill me. Walker obtained a stick and ran after me. He followed me across the bridge and almost caught me. At that time I turned and shot him once. I bumped into my horse on the west side of the bridge, but do not know how the animal got there. I called Bellah and told him I had shot Walker.”
Mrs. L. D. Bellah testified that Walker and his wife “came over to our house” Saturday night preceding the shooting. They had been informed Scott had told Bill Dees “they” were going to kill Walker or fire him. Walker said he was not afraid, that he had confidence-in Brandon.
Mrs. Bellah says she was awakened early and heard Scott ride up in front of the door. The witness had just hung some “ticking” over a window. She looked out and told her husband to get up and build a fire — “they are waiting on you now.” Just as Mrs. Bellah spoke to her husband, or about that time, she heard Walker on the bridge coming toward her house. Her testimony is that “. . . he walked on across the bridge [and then] Scott rode his horse right up to the end of the bridge. That is where the shooting occurred. I saw Scott ride up to the bridge, with his horse’s head on it. The bridge rattles when it is used. I couldn’t see Scott’s gun when he fired, but I saw him on the horse. ... I could see Walker’s feet under the horse, but not his body. . . . He shot [Walker] as he was standing on the last board of the bridge. . . . The killing took place a very short time after the two men met — not over two minutes.”
In detailing the conversation she claimed to have heard, Mrs. Bellah said: “Scott, when he rode up in front of Henry, told him he had a new man to put on the bulldozer. Henry replied, ‘Mr. Brandon hired ine, and he will tell me to get off.’ Scott then said: ‘I told you I have another man, and you are not going out there.’ Henry told Scott to ‘put that gun up, fellow, because I’ll make you eat it.’ That was the last sign he made.” Immediately.after Walker told Scott to put his gun away, Scott fired, then rode up to the Bellah home and stated that he had shot the man. Mrs. Bellah also said that when Scott was standing by the porch his nose bled. He wiped it off with a handkerchief. Scott’s face was not bloody: didn’t have a scratch on it: — “Henry Walker did not raise a hand to fight him, or do anything to him.”
Other Facts — and Opinion
Other testimony was given, favorable to each side. It is in evidence that Scott had a bruised face and scratches when seen shortly after the shooting. He crossed the bayou at a point below the bridge. Appellee attaches significance to the fact that Scott had been in the habit of riding a spirited black horse, but the morning Walker was killed a different mount was utilized. It was also ridden by Scott the following day. Mrs. Bellah admitted she did not tell all she knew when questioned during a preliminary hearing to determine whether Scott should be held on a criminal charge. Explanation was that she didn’t want to get mixed up in the affair, and that certain direct questions were not asked.
Appellants concede that findings of facts by the compensation commission are, on appeal, given the same verity that would attach to a jury’s verdict, or to. facts found by the judge of the circuit court where a jury was waived. But, it is insisted, “the material and pertinent facts necessary for a determination of the case are not contradicted. ’ ’
We are reminded, first, that the object sought to be attained by Act 319 of 1939 was to compensate employes, (in case of injury) or dependents, (in case of death) when injury or death occurred while the employer- employe relationship existed. The injury, whether limited or productive of death, must occur while the employe is engaged in the master’s business. It is argued, therefore, (a) that Walker was not an employe of the Lundells when he was killed; (b) that his death “did not arise out of or in the course of his employment,” and (c) that he was the aggressor.
It is certain Scott had authority to discharge Walker, although perhaps Walker had not been informed that Brandon had delegated the power. In what manner, then, did Scott exercise that right?
Under any reasoning based upon the facts, Walker was not given time to quit the premises between notice of discharge and Scott’s use of the pistol. His trailer was on Lundell property, and even though the unfortunate man were called from his living quarters and summarily dismissed before starting to work, the conversation and act of killing were so much a part of the same transaction that discrimination cannot differentiate between them. Scott was serving his employers when, at an early morning hour, he rode more than three miles to transmit to Walker the ultimatum, and while Brandon did not, of course, intend that the authority to discharge should be coupled with violence, yet the agent he selected killed Walker while the master’s commission to bring about a desired result was being executed.
A general rule, appropriately expressed by Judge Cooley, is that where a servant. acts without reference to the service for which he is employed, and not for the purpose of performing the work of the employer, but to effect some independent purpose of his own, the master is not responsible for either the acts or omissions of the servant. The converse is that when the servant acts with reference to the services for which he is employed and for the purpose of performing the work of his employer, and not for any independent purpose of his own, but merely for the benefit of his master, acts done in such circumstances are within the scope of the servant’s employment. Bryeans, Administratrix, v. Chicago Mill & Lumber Company, 132 Ark. 282, 200 S. W. 1004 See, also, Chicago Mill & Lumber Company v. Bryeans, 137 Ark. 341, 209 S. W. 69. These cases are cited in American Railway Express Company v. Mackley, 148 Ark. 227, 230 S. W. 598.
In Robinson v. St. Louis, I. M. & S. Ry. Co., 111 Ark. 208, 163 S. W. 500, it was held that the railway company was liable for the wilful or malicious acts of its servant when they were done within the course of the servant’s employment, and within its scope. See first headnote at page 208 of the Arkansas Report, and cases cited at pages 213 and 502 of 163 S. W.
Whether, in respect of a particular transaction, the servant acted with reference to the services for which he was employed as distinguished from an independent purpose of his own, is ordinarily a question of fact referable to a jury when the right is not waived. In the instant case the period between discharge and death was too transitory to justify the claim that Walker was not an employe when shot.
The greatest difficulty is confronted when consideration is given evidence of a substantial nature indicating wilfulness, and, inferentially, a malignant design upon Scott’s part. Certainly, if Scott killed because of a personal grudge and .took advantage of his status as foreman to punish Walker, the circuit court erred in affirming the commission’s award. On the other hand, if during conversation immediately preceding Scott’s act he became excited, irrational, or unreasoning because of a purely imaginary danger, and fired while under mistaken apprehension his life was in danger, or that great bodily injury might be sustained, responsibility would attach to the masters. This was a question of fact, and it has been decided by the commission in claimant’s favor. It is true there was no evidence other than circumstances attending the meeting, and its result, showing that Scott fifed impulsively; but these circumstances must be considered in connection with testimony of witnesses, at least one of whom claims to have seen Scott on horseback when the shot was fired. The commissioners seemingly believed Mrs. Bellah; nor is her story of having witnessed preliminaries, and Scott’s subsequent deportment, more improbable than that of the killer because of semi-darkness. Scott testified to having seen Walker chasing him, with a club or a stick in his hand. The commissioners probably thought that if Scott, armed with a pistol, and in flight, could identify a weapon in his pursuer’s possession, Mrs. -Bellah could see a horse and two men.
An attorney’s fee of $500 was allowed, to be deducted from final installments due appellee. The statement is made by appellee’s attorneys that “. . . [Mrs. Walker] has stated to her attorneys that she has -no objection to an allowance of the maximum of 25 per cent., as she feels the amount has been earned.” This would be largely in excess of $500. While we do not question accuracy of this declaration, there is no testimony regarding the fee; nor was sufficiency of the allowance questioned by cross appeal.
Judgment affirmed.
Lundell Plantation was owned by E. W. and Raymond Lundell.
The bullet entered an eye and ranged down toward the neck. | [
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Hart, C. J.,
(after stating the facts). The main reliance of the defendants for a reversal of the judgment is that the transaction was, in effect, a device to cover a loan and to exact a greater rate of interest than that allowed by law. We do not agree with counsel in this contention. The law is well settled in this State that usury can only attach to a loan of money or to the forbearance of a debt, and that, on a contract for the sale of property, the contracting parties may agree upon one price if cash be paid, and upon a large addition to the cash price, as may suit themselves, if credit be given. Where the facts show that the transaction is in reality a sale, and the agreement is not made in consideration of the loan or forbearance of money, the charge of usury is not sustained. Ford v. Hancock, 36 Ark. 248; Brakefield v. Halpern, 55 Ark. 265, 15 S. W 190; Ellenbogen v. Griffey, 55 Ark. 268, 18 S. W. 126; Blake Bros. v. Askew, 112 Ark. 514, 166 S. W. 965; Smith v. Kaufman, 145 Ark. 548, 224 S. W. 978; and Standard Motor Finance Co. v. Mitchell Auto Co., 173 Ark. 875, 293 S. W. 1026.
The cash price of the automobile was $600.31, and the credit price, including certain extra equipment, was $743.81. The added charge was not a mere device to evade the statute against usury, but it represented the credit price of the car as distinguished from its cash price, and the circuit court properly held that the sale was valid and free from any taint of usury. The facts did not show this to be a case where property was sold at a cash valuation and certain payments were deferred in consideration that a greater rate of interest than allowed by law be paid by the purchaser. The transaction was neither a loan nor a forbearance of a debt, but was simply a contract to pay a greater sum for the purchase price of the automobile on a credit than would have been paid had the sale been for cash.
It is next insisted that the contract is usurious because the memorandum on the face of the note and sales contract, as signed by Ima Mae Cheairs, was “Insurance and interest,” instead of “Insurance and carrying charge,” as it now appears. The sum under this item was $76, and, under the facts disclosed'by the record, though it was in the original contract called ‘ ‘ interest, ’ ’ if was not paid for a loan of money, but was a part of the purchase price which the defendant at the time agreed to pay for the automobile. There.is no evidence whatever that the transaction was intended as a cover for a loan. Parker v. Coburn, 10 Allen (Mass.) 82. Hence the alteration in the contract was an immaterial one, and there is no ground whatever for the suggestion of the defendants that the contract was usurious.
Therefore the judgment will be affirmed. | [
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McCulloch, C. J.
This is an action at law instituted by appellant against appellee to recover on a promissory note executed by the latter to the former, dated January 4,1921, due and payable March 1 after date, for the sum of $1,673.56, with interest. Appellee answered, setting up as defense that he had made a composition with his creditors, which had been accepted by appellant, and that appellant had received and accepted a certified check for its pro rata amount of the composition. Appellant admitted the receipt of the check for the amount named, but contended that its acceptance of the composition had been induced by fraudulent acts on the part of appellee or his creditors. The issues were tried before a jury, but, at the conclusion of the introduction of testimony, the court gave a peremptory instruction in favor of appellee. The question presented on this appeal is whether or not there was sufficient evidence on the part of appellant to call for a submission of the issues to the jury.
Appellee was a merchant at Blaine, in Logan County, and, in the course of his business, executed the note in suit to appellant. Becoming financially embarrassed, appellee applied to his largest creditor, the Beal-Burrow Dry Goods Company, of Little Bock, -for an adjustment, and, through the latter, a proposition was submitted to the creditors of appellee for a composition on the basis of payment of one-third of the debts in full settlement. A letter was sent out to the creditors by Beal-Burrow Dry Goods Company, dated May 7, 1921, stating in substance that appellee was hopelessly insolvent, and offering, on behalf of appellee, the payment of thirty-three and one-third cents on the dollar to all the creditors. The letter was accompanied by a financial statement of appellee showing gross assets inventoried $18,853.32, but of a net value of $4,875.45, in addition to his homestead, and also accompanied by a list of the creditors, showing* an aggregate of $18,011.86. The letter presented argument why it would be to the best interest of the creditors to accept the offered composition, and requested an affirmative reply from each creditor. The letter contained a statement, that, unless all the creditors accepted the proposition, the estate would be thrown into bankruptcy. One of these letters, with accompanying statements, was sent to appellant, and on May 13,1921, appellant’, through its president, wrote a letter to Beal-Burrow Dry Goods Company, accepting the offer. In the list of creditors appellant’s debt was listed at the sum of $1,575, and on June 21, 1921, Beal-Burrow Dry Goods Company mailed to appellant, in satisfaction of its debt in accordance with the composition, a certified check of Hays & Ward, attorneys for appellee, on a bank at Russellville, Arkansas. Appellant did not cash the check, but made no response until September 27, 1921, when it wrote to appellee a letter demanding payment of the full amount of the original debt. Payment was refused, and this suit was instituted about a year and a half later, and appellant, for the first time, offered in its pleadings in the case to return the certified cheek.
There was proof adduced in the case that several creditors in small amounts were subsequently paid the amounts due them in full. Some of those creditors were not embraced in the list, and another creditor — Durett Flour & Grain Company of Fort Smith, Arkansas, whose debt was listed in the sum of $858.23 — instituted suit against appellee and recovered judgment against him for the full amount of the debt. This was subsequent to the composition. It is insisted that there is evidence to sustain the contention of appellant that appellee perpetrated a fraud in several respects, to-wit: in representing his financial condition to be insolvency, when, as a matter of fact, he was not insolvent; in representing that he would comply with the composition, if accepted by creditors, by mortgaging his homestead and raising the money in that way to pay the amount; that he misrepresented the amount of his assets and the amount of his debts, and secretly agreed with his creditors to give a preference. There were other contentions, to be stated in the course of this opinion.
A composition of creditors is an agreement between an embarrassed debtor and his creditors for the immediate payment of a less sum in satisfaction of the whole amount due on the claim, and it constitutes an agreement, not only between the creditors and his debtors, but also one between the creditors themselves, that each shall receive an equal sum out of the assets of the embarrassed debtor. An acceptance of the amount offered in compensation, or an agreement to accept the same in full of the debt, is binding upon a creditor in the absence of fraud, and precludes him from suing on the original claim. 5 R. C. L., p. 868. It has been held, however, that a part performance of the composition agreement does not constitute a satisfaction of the original debt (1 C. J., p. 533, and note), and it is contended, in the first place, that appellant is not bound by the receipt of the certified check, for the reason that it fell short of being one-third of the full amount of the debt. In other words, the contention is that appellant’s debt, iwith accumulated interest, amounted to $1,650, and that the check sent was for $525, which was $25 short of the amount due under the composition. The answer to this contention is that appellant’s debt was listed in the proposition sent out by Beal-Burrow Dry Goods Company in the sum of $1,575, and appellant’s acceptance of the offer constituted an agreement to accept one-third of the amount stated in the list of creditors. If appellant desired to claim a larger amount, it should have qualified its acceptance by stating the amount it was willing to accept. The amount of the check corresponded precisely with the amount that appellant had agreed to accept, and therefore it is too late now to contend that it was entitled to a larger sum.
The next contention is that the check was not’ delivered within a reasonable time. The delay was waived by receiving the check without objection. Accord ing to the undisputed proof, the check was sent on June 21, and appellant made no objection to it until September '27, and then the objection was not based on any delay, and the check was retained by appellant until the commencement of this suit, a year and a half later.
The next contention is that the composition agreement was not binding, for the reason that all of the creditors did not assent to it. The rule is that the validity of a composition agreement is not dependent upon the assent of all creditors unless the agreement itself so states. In. other words, there may be a composition of a part of the creditors without invalidating the agreement or affecting the rights of other .creditors (12 C. J., p. 261), but, where the agreement itself states that it is not binding unless all of the creditors accept, then it does not constitute a valid and binding composition .until there is an acceptance by all the creditors. The letter sent out by Beal-Burrow Dry Goods Company on behalf of appellee undoubtedly contemplated an assent from all the creditors, and appellant, in expressing its acceptance, assented under those terms, and, if the fact was secretly withheld from appellant that other creditors had not accepted, then it would defeat the composition, and .appellant would be entitled to recover on the original debt. In examining the testimony in the case we find that the claims of all of the creditors, except one, who failed to accept the composition, were very small in amount — too small to be of sufficient consequence to operate as a fraud on appellant if their non-acceptance was withheld. The theory upon which the rule of law is based that there must be an acceptance of all the creditors is that it constitutes a fraud on those who do accept to permit a secret preference to be given those who do not accept, but, if the amount of the claims of omitted creditors is, in the aggregate, so small that it could not have had any substantial influence upon the action of accepting creditors, it is immaterial, and does not avoid the composition. There is another reason why appellant cannot escape the binding force of its acceptance, and that is that, at the time it received the check, it knew that certain of the small creditors were to be paid in full, and this constituted a waiver of the fraud, if any, in giving preference to the omitted creditors. Knowledge, at the time of the acceptance of the amount paid under composition, of a secret preference to other creditors, or any other fraud, constitutes a waiver of such fraud. 12 C. J., p. 285; Clark v. White, 12 Peters 178; Bowet v. Metz, 54 Iowa 394. The only proof with reference to the other large creditor, Durett Flour & Grain Company, $858.23, is that, subsequent to the composition, that creditor obtained a judgment against appellee for the full amount of the claim. That particular creditor was listed along with the others, and there is no proof introduced as to whether or not there had been an acceptance of the offer. The mere fact that the creditor in question obtained a judgment against appellee is not sufficient to show that there was no acceptance by the creditor of the offer, or that appellee was attempting to confer upon that creditor a preference. It is not explained why the Durett Flour & Grain Company was permitted to sue on the original debt, and, as before stated, it is not shown that there had been no acceptance. It may be that there was an acceptance, but that appellee had failed or omitted to pay the pro rata and had been sued for the original debt on that account. This is far from showing that there had not been an acceptance by the creditor, or that there was a secret preference attempted.
The other contentions in the case are that appellee did not list all of his property, in that there was land in his wife’s name which should have been listed as his property, and also that he was not insolvent at the time, and had not been threatened with bankruptcy. We are of the opinion that the evidence does not sustain these charges and was not sufficient to warrant a submission of the issues to the jury. The burden was upon appellant to show that fraud had been perpetrated, which misled him and induced him to make an acceptance which would not otherwise have been made, and appellant has not sustained that burden by introducing proof tending to show that there was a misrepresentation in any of the particulars mentioned.
Again, it is urged that the representations were false in the statement that the money to carry out the composition would be raised by mortgaging the homestead, whereas the money to pay the creditors was furnished by the appellee’s attorneys. This is unimportant, and does not affect the integrity or validity of the composition. If appellee found other means of raising the money to comply with the composition agreement, it had no bearing on the controversy further than it might show that appellee had other property which was withheld from the statement of assets. But the bare fact that the money was paid into the Russellville bank by appellee’s attorney raises no inference that it constituted funds which belonged to him and was being wrongfully withheld from creditors.
Upon the whole we are convinced that there was no evidence sufficient to warrant a submission of the issues to the jury, and that the court was correct in directing a verdict in favor of appellee.
The judgment is therefore affirmed. | [
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Wood, J.
On January 2, 1928, a petition was presented to the White County Court asking that the boundary lines of Levee District No. 1 he changed and that certain territory described in the petition he added to the district “for the purpose of constructing- and maintaining a levee for the protection” of the lands described in the petition and all the lands which had already been included in Little Red River District No. 1. At the regular January term, of the White County Court the court found that notice was given to the resident landowners in the territory described in the petition more than ten days before the application for the change in the boundary lines by posting written notices in three public places in the limits of the district and the proposed addition thereto. The court further found that ¡an election had been duly and regularly held for the purpose of electing one director and assessor for the Little Red River District No. 1, and that one George Akers was elected director and Walter Heathcock was elected assessor.
This action was instituted in the White Chancery Court by L. A. Smith against T. H. Garretson, Swan Garretson and George Akers, as directors, and Walter Heathcock, L. A. Pryor and J. M. Garretson as assessors, of Little Red River District No. 1. The plaintiff alleged that he was a landowner and taxpayer of the district, and that an order was made annexing certain territory to the district, which order is set ont and made an exhibit to his complaint, and the ¡alleged annexed territory is described in the exhibit. He further alleged that the court ordered an election, after due notice, for the purpose of electing a director and also an assessor to fill vacancies in those respective offices, and that ¡at the election so held one George Akers was elected director and Walter Heathcock was elected assessor. He alleged that the directors and assessors were threatening to assess his lands and other lands in the district and to issue additional bonds to repair the levee, which was damaged by overflows, and that there was no provision under the law whereby the lands can he assessed and no right or authority in the assessors to assess the lands which had been annexed to Little Red River District No. 1. The plaintiff prayed that the defendants be enjoined from levying an assessment of benefits on his land.
The defendants filed a general demurrer to the complaint. The cause was submitted upon the complaint with its exhibits and the demurrer of the defendants. The court sustained the demurrer, and the plaintiff stood on his complaint and exhibits. The court entered a decree dismissing the complaint for want of equity, from which is this appeal.
1. It will he observed that the cause was heard on the demurrer to the complaint. In ¡actions in equity exhibits to the complaint will be looked, to, on demurrer, for the purpose of testing the sufficiency of the allegations of the complaint. See Evans v. Pettus, 112 Ark. 572, 166 S. W. 955; Moore v. Exelby, 170 Ark. 908, 181 S. W. 671. The complaint alleges that the county court of White County made an order annexing certain territory in which the plaintiff owned lands, and that the county court made ¡an order directing that an election he held for the purpose of electing a director of Levee District 'No. 1 and also to elect an assessor, and that the election was duly held, all of which was shown by an order of the county court, which was attached and made an exhibit to the complaint. When the recitals of the order of the county court are examined, it will be observed that the court, in making the alleged order of annexation and for the election of a director and an assessor, followed the procedure prescribed by the statute with reference to the formation of new or original districts as regards notice and election of directors and assessors. See §§ 6814-6819 of Crawford & Moses’ Digest. While the recitals of the order designate it as a petition for the annexation of territory and a change in boundary lines, these recitals further declare that the petition was presented asking that the boundary be changed and the territory described therein added “for the purpose of constructing and maintaining a levee for the protection of the above described lands, as well as all the lands included in said Little Red River District No. 1, to the end that all said lands shall be protected from overflow.”
The recitals of the order of the county court upon which the appellant predicates his alleged right to enjoin the appellees from levying- an assessment of benefits on his land, and which recitals must explain and control any allegations of the complaint, really make it uncertain whether the purpose of the county court of White County was simply to lay off and form a new levee district with the same name and including the same territory as that embraced in Little Red River District No. 1 and also the additional territory as that described in the order of the county court, or whether the purpose of the court was to change the boundary lines of the district already existing so as to include therein new territory. However this may be, it is certain that the appellant’s lands have been brought into the district under an order of the county court under the same notice and procedure which would have been followed if the county court had been really creating a new levee district instead of merely changing the boundaries of one already existing. 'Such being the state of the record, the trial court was not called upon to pass upon the constitutionality of the act of March 20, 1879, as amended by the act of March 1, 1889, as set forth in § 6813 of Crawford & Moses’ Digest. Certainly the appellant is not in an attitude to contend that his lands were embraced in the district without notice to him, and that the act of March 1, 1889, is for that reason unconstitutional and void.
In Ry. Co. v. Smith, 60 Ark. 221-240, 29 S. W. 752-754, Judge Battle, speaking for the court, quoted from Judge Cooley on Constitutional Limitations, p. 231, paragraph 2, as follows: “Neither will a court, as a general rule, pass upon a constitutional question, and decide a statute to be invalid, unless a decision upon that very point becomes necessary to the determination of the cause. While courts cannot shun the discussion of constitutional questions when fairly presented, they will not go out of their way to find such topics. They will, not seek to draw in such weighty matters collaterally, nor on trivial occasions. It is both proper and more respectful to a coordinate department to discuss constitutional questions only when that is the very lis mota. Thus presented and determined, the decision carries a weight with it to which no extrajudicial disquisition is entitled. In any case therefore where a constitutional question is raised, though it may be legitimately presented by the record, yet, if the record also presents some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration until a case ¡arises which cannot be disposed of without considering it, and when consequently a decision upon such question will be unavoidable.” Such has been the unvarying practice of this court. See also Martin v. State, 79 Ark. 236, 96 S. W. 372; Sturdivant v. Tollett, 84 Ark. 412, 105 S. W. 1073; Road Imp. Dist. No. 1 v. Glover, 86 Ark. 231, 110 S. W. 1031.
2. But learned counsel for the appellant contends that no express ¡authority is contained in the statute, § 6813, for the ássessing of benefits against any land that may be added to an existing levee district by a change in the boundary of such district. We cannot concur in this view. The act of March '20, 1879, authorizing the creation of levee districts, provides for ¡a board of three assessors for such districts, whose duty it is, under the statute, to assess the benefits to accrue to the lands in such districts by reason of the levees to be constructed and maintained. This language, “shall assess the value of lands in said district * * * and shall assess the value thereof,” i. e., the benefit of the work or improvement made, is sufficiently comprehensive to include all the lands that may be embraced in any levee district that may exist as originally formed, and also any lands that may be subsequently added by a change in the boundaries of such district. The Legislature of 1889, in § 1 of the act approved March 1, 1889, after amending the act of 1879 so as to authorize the county court to lay off levee districts or change or order the boundaries of existing levee districts, further provided, in § 2 of the act, “that the said board of assessors shall make an assessment of the cost of said work upon the land situated in said district benefited by said work,” etc. The Legislature of 1897 amended § 2 of the act of March 1,1889, so as to read as follows: “Said board of assessors • shall make an assessment upon the cost of said work upon the lands situated in said district benefited by said work and reported at s:aid meeting of landowners,” etc. Then follow certain changes in the section not necessary to set out. See §§ 4365, 4367, 4375 of Mansfield’s Digest, and 4709 of S. & H. Digest, all brought forward and digested in §§ 6813> 6815, 6823 and 6830 of Crawford & Moses’ Digest. When these provisions of our statutes pertaining to levees are considered, it is clear that the assessors of all levee districts ¡are expressly authorized to assess the benefits to accrue to all the lands included in the district by the building and maintaining of the levee. A review of the statutes set forth above convinces us that the Legislature used the words “levee district” intending that they should, be applied to all the lands embraced in such districts, whether ¡as at first formed or created, or as such districts might exist should their boundaries be afterwards changed.
Furthermore, even if the board of assessors were not expressly authorized to assess the benefits to the additional lands brought into the existing levee districts by change of boundaries, they would have such authority by necessary implication, because it is their duty, under § 6823 of C. & M. Digest, supra, to assess the value of the benefits to accrue to the lands by reason of the levee. This necessarily includes all the lands that may be embraced in any existing’ levee district. Any other construction would cast an unjust ¡and discriminatory burden upon some of the lands in the district and defeat the purpose of the law in the creation of such improvements.
In West v. Cotton Belt District No. 1, 116 Ark. 538, 173 S. W. 403 (a levee district case) we held: “In the construction of statutes governing improvement districts, the grant of powers by the statute includes the incidental powers reasonably proper and necessary for carrying into execution the powers specifically granted.” That doctrine applies here.
The decree is correct. Let it be affirmed. | [
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Mc'Cullooh, C. J.
Appellant prosecutes this appeal from an order of the chancery court of Miller County refusing to set aside a decree rendered against him in favor of appellee by that court on a former day of the same term. The original decree was rendered by the court on .September 1, 1923, and the order refusing to set it aside was rendered by the court, on September 15,1923.
The basis of the effort to have the orginal decree set aside is an allegation by appellant that appellee, through her attorney and agent, promised, after the institution of the action, to dismiss it, and that the decree was taken in violation tof that agreement and without notice to him.
The litigation arose out of the sale of a plantation in Miller County by appellee to appellant. Appellee owned the property, and on January 18, 1923, sold and conveyed it to appellant for a consideration of $80,000, of which $40,000 was to be paid by the assignment of four notes held by Appellant, aggregating the sum of $40,000, executed to him by a Mrs. Franklin and secured' by a third mortgage on an apartment house in Kansas City, Missouri. Appellant was to borrow, and clid borrow, from a joint stock land bank $28,000, wbicb was paid over to appellee, and for tbe remaining sum of $12,000 of tbe purchase price be gave appellee notes and executed a mortgage on tbe conveyed property, subject to tbe mortgage given to tbe joint stock land bank. Appellant assigned the notes to appellee by indorsement without recourse, and, as before stated, the notes were accepted as part payment of tbe purchase price of the plantation. Appellant took possession of tbe plantation and operated it during tbe year 1923.
.Appellee commenced tbe present action against appellant on July 12, 1923, alleging that appellant bad induced her to accept tbe notes of Mrs. Franklin by false and fraudulent representation that tbe notes were then ° secured by a third mortgage on tbe Kansas City property, whereas, in truth and in fact, Mrs. Franklin bad, before that time, conveyed tbe property to appellant in payment and cancellation of tbe notes. Tbe prayer of tbe complaint was that the assignment of tbe notes to appellee be canceled on account of tbe alleged fraud and that she recover of appellant tbe amount thereof, $40,000, with interest, and that a lien be declared on tbe land for tbe amount.
Immediately after tbe institution of the action and tbe service of summons on appellant, be went to see appellee and her attorney, and be claims that they then and there agreed that they would dismiss tbe action and give him time to make a resale of tbe plantation, wbicb be claimed be could do within a reasonable time, and that be would, in oase of a resale of tbe property, give them one-fourth of all tbe price of tbe sale of his equity over and above $40,000. Appellee denies that she made that agreement Appellant claims that, as soon as tbe alleged agreement with reference to tbe dismissal of tbe action was made between him and appellee, be proceeded with bis efforts to sell tbe plantation, but did not succeed, though bis efforts were continued up to tbe time he received notice of tbe decree, and that appellee, in viola tion of the agreement, procured the decree on September 1,1923, without notice to him; that he had no information that the suit had not been dismissed until after he heard that the decree had been rendered.
Appellant testified in support of his claim concerning the agreement to dismiss the action, and his testimony tended , to support his claim. He was also supported by the testimony of Ms son, who testified that he was present at the conference between appellant and appellee, and that the alleged agreement to dismiss the action was, in fact, entered into.
Appellee and her attorney both testified that there was no agreement made to dismiss the action, except a proposal made in a certain letter written by appellee’s attorney and delivered to appellant. They testified that there was a conference between them and appellant, at wMch appellant proposed to sell the land and divide the profits as claimed by appellant, but that no agreement was reached in the conference. W. L. Perkins, a real estate agent, who negotiated the transaction between the parties, was also present at the conference, and he testified to the same effect as the testimony of appellee and her attorney. Perkins was to assist appellant in making a resale of the property. The next day after this conference, or the day thereafter, appellee’s attorney addressed a letter to Perkins, setting forth the terms and conditions upon which appellee would deal further with appellant in regard to the resale of the plantation. In tins letter it was proposed that, if appellant would find a purchaser for his equity in, the plantation who would assume the payment of the mortgage to the joint stock land bank and the second mortgage to appellee, and pay all the accrued interest on these mortgages, and pay appellee $5,000 in cash, and either pay or satisfactorily secure the amount of $8,000, with interest, which appellee had advanced to appellant, appellee would agree to dismiss the action. The letter concluded as follows“For your information, the chancery court, where this suit is brought, will not be in session again until the first day of September, so you. can see no action can be taken until that time. I am willing to cooperate with you in making a trade that will bring about a settlement indicated in this proposition, but I am not willing to go any further than is suggested in this letter.” Perkins was directed to deliver this letter to appellant, and he immediately did so. He testified that he thought the letter was addressed to appellant himself, and that appellant read the letter, and they discussed it. He testified that he told appellant that “he had better look after this thing, that somebody might catch him with his pants down,” and that appellant replied that he “was looking after all that, that he had this letter. ’ ’
We are of the opinion that appellant has not made a sufficient showing of promises or conduct on the part of appellee or her attorney to call for setting aside the former decree of the court. The preponderance of the evidence is against him on the issue. Certainly it cannot be said that the preponderance of the evidence is against the finding of the chancellor. The testimony of appellant is supported only by .that of his son, and it is in conflict with the testimony of appellee and her attorney and Perkins. In addition to that, appellant admits that he received the letter which was delivered to him by Perkins, on the next day after appellant’s conference with appellee and her attorney. He admits he read the letter, but that, after reading it, he went to see appellee’s attorney again, that he understood the suit had already been dismissed, and proposed that a writing be prepared and sig*ned evidencing the agTeement, but that appellee’s attorney replied that “that was not necessary; they would attend to that.” This is all denied by the attorney, and appellant’s testimony is in conflict with that of appellee and her attorney and Perkins. After reading the letter from appellee’s attorney, appellant had no right to assume that the suit had been dismissed, or would be dismissed, or that the proceedings would be postponed later than 'September 1.
There is still another reason why the court was not in error in refusing to set aside the decree: that is, that the court heard all the testimony anew on the petition to set aside the original decree, no request was made for-time to introduce any further testimony, and the original decree was correct on the evidence finally adduced.
The fraudulent misrepresentations claimed hy appellee to have been made to her by appellant were fully made out by the proof. It is uncontradicted that, at the time appellant purchased the plantation from appellee and transferred the Franklin notes to her, Mrs. Franklin had, more than eight months before that time, executed to him a deed conveying to him her'equity in the Kansas City property in cancellation of the notes. This deed was placed on record by Mrs. Franklin herself, and mailed to appellant. This extinguished the notes, which no longer constituted a lien, as the legal title had been conveyed to appellant in satisfaction of the notes. It is true that appellee would have had, on discovery of those facts, a right of action to set aside the cancellation of the notes, so far as concerned appellant himself, and reinstate the mortgage lien as against appellant, but this would have meant a lawsuit, and, as against any subsequent innocent purchaser, would not have been available. Appellant claims that he did not accept the conveyance from Mrs. Franklin, and that he reeonveyed the property to her, but the proof shows that this reconveyance was not executed until after the commencement of the present action, and that the deed was not actually delivered to Mrs. Franklin. Appellant’s indorsement of the notes was without recourse, but this fact did not absolve him from the effect of his alleged false and fraudulent representations to appellee, at the time he purchased the plantation from her, that the Franklin notes constituted a lien on the Kansas City property. In either view of the matter we are of the opinion that the chancery court was correct in refusing to set aside the original decree, and its order in that respect is therefore affirmed. | [
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Griffin Smith, C. J.
Mrs. Teresa Wilson’s daughter, Vivien, married John A. Urquhart in New York June 22, 1922, and the couple resided there. In 1931 Vivien went to Garland county, Arkansas, to obtain a divorce. Her testimony is that she returned to New York before the decree was granted, her stay in Hot Springs having been for a period less than ninety days. In New York she resumed her marriage status with Urquhart, and a son (Peter Andrew) was born October 23, 1935.
January 3, 1940, Mrs. Wilson, as grandmother and next friend of Peter Andrew, brought an action in Garland chancery to annul the decree of divorce granted July 5,1932, on Vivien’s complaint. Mrs. Wilson alleged that at the time the decree was rendered Vivien was mentally incompetent. The complaint was dismissed September 3, 1940, for want of equity. No appeal was taken.
October 22, 1941, Mrs. Wilson moved to vacate the order dismissing her 1940 complaint. The motion was overruled the same day; hence this appeal.
April 20, 1942 — two days before the expiration of six months following’ the chancellor’s action in overruling’ the motion to vacate the order dismissing the petition to vacate the decree of divorce — an appeal was lodged in .this court. Warning order was issued on affidavit duly presented, with proof of publication May 22, 1942, for the requisite period. The attorney ad litem has moved to be discharged.
The appeal must be dismissed because the order of October 22,1941, was not appealable. United Drug Company v. Bedell, 164 Ark. 527, 262 S. W. 316; Bradley v. Ashby, 188 Ark. 707, 67 S. W. 2d 739.
The 1940 decree shows that Mrs. Wilson was represented by her attorneys when the court dismissed the petition of January 3. There is the recital: “The plaintiff at the time excepted and prays that her exceptions be noted of record, which is accordingly done.”
We do not discuss the question whether Mrs. Wilson, as Peter Andrew’s next friend, had a right to ask the court to set aside the decree of divorce. See Kirby v. Kent, 172 Miss. 457, 160 So. 569, 99 A. L. R., p. 1303; Baugh v. Baugh, 26 American Reports, p. 495, 37 Mich. 59. But see, also, Robert Rawlins, Administrator, et al., v. Amanda Rawlins, et al., 18 Fla. 345. An interesting discussion of the verity given by New York to divorces granted in foreign jurisdictions where personal service was not obtained is to be found in Vreeland’s “Validity of Foreign Divorces. ’ ’
The appeal is dismissed and the attorney ad litem is discharged. No' fee can be allowed the attorney because this court did not acquire jurisdiction, there having been no right of appeal.
Although the complaint of January 3, 1940, alleged that Vivien, at the time her suit was filed in 1932, was “mentally incompetent to understand and comprehend the seriousness [of her act in suing for divorce], and still is mentally incompetent,” her deposition was taken in the instant case. The effect is to impliedly contradict the allegation of mental incompetency. Mrs. Urquhart established the so-called “residence” at Hot Springs Dec. 18, 1931, remained 82 days (her testimony), then returned to New York. | [
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Hart, C. J.
Appellants prosecute this, appeal to reverse a decree of the chancery court ordering them, as commissioners of Water and Light Improvement Dis trict No. 2 of Wynne, Arkansas, to pay to appellees, as owners of real property in said district, a certain per cent, of the benefits assessed by said improvement district against the real property of appellees as their part of the profits derived from the sale of the plant of said improvement district.
A statement of the facts sufficient for the purposes of this appeal is as f ollows: In 1899, Water and Light Improvement District No. 1, embracing a portion of the incorporated town of Wynne, was organized.' The corporate limits of the town were subsequently extended, and, it having the requisite population, Wynne became a city of the second class. Water and Light Improvement District No. 2 embraces the territory of District No. 1 and much other territory of the city of Wynne, and was organized for the purpose of reconstructing the existing waterworks and extending the same. An attack upon the validity of the new district was sustained on the ground that it had no power to acquire the water and light plant constructed by the old district. Sembler v. Water & Light Improvement District No. 2, 109 Ark. 90, 158 S. W. 972. Subsequently the Legislature of 1915 passed an act validating the organization of Light and Water Improvement District No. 2 of Wynne and authorizing the organization of improvement districts for the purposes of reconstructing and extending waterworks and electric lights. Acts of 1915, p. 9. Pursuant to the power conferred by the provisions of this act, said District No. 1 sold its plant to said District No. 2 for the sum of $10,000. The old plant was incorporated into and became a part of the new plant of said District No. 2. The new plant cost a total of $100,000. Bonds to the amount of $90,000 were issued to raise funds with which to pay the additional cost of the new plant. It was agreed that the $10,000 owed to District No. 1 should be paid by allowing a set-off to the property owners in the assessment of benefits upon their property. The Legislature of 1923 passed an act authorizing the sale of waterworks, gas or electri e plants belonging to or operated by municipal corpora tions or improvement districts. Gren. Apts 'of 1923, p. 252. Pursuant to the provisions of this act, the Arkansas Light & Power Company purchased the plant of said District No. 2 in February, 1926. The consideration was $35,000 in cash and the assumption of outstanding bonds of the district aggregating $83,000. District No. 2 already had on hand profits from .the proceeds of operation of its plant in the sum of $10,525.53. This made a total of $45,525.53 to be disbursed to the property owners in said District No. 2.
Appellees owned property in said District No. 2, but not in said District No. 1. It is the contention of appellees that the proper distribution of the sum of $45,525.53 in the hands of appellants entitles each owner of real property in said District No. 2 to a pro rata share of said profits, and that the plant of the original district, valued at $10,000, should not be taken into account in making the disbursement.
We are of the opinion that the decision of the chancellor was correct. It is true that the plant of District No. 1 was valued at $10,000 and sold to District No. 2 for that sum. In consideration of the sale, and in part payment of the price, the owners of real property in District No. 1 for a period of three years received a reduction in the assessment of benefits upon their property. When the property of District No. 1 was sold to District No. 2 and bonds in the sum of $90,000 were issued, the property situated in District No. 1 became liable for its proportionate part of these bonds. In other words, its property was liable for an assessment of benefits for the payment of these bonds the same as the other property in District No. 2. When District No. 2 sold its property to the Arkansas Light & Power Company and that company assumed the payment of the outstanding bonds, this relieved the property in District No. 1 from that burden as well as the other property in District No. 2. Besides this, there was a sum of money already on hand which had accrued as profits to District No. 2 in operating its plant. In the purchase of the plant, the Arkansas Light & Power Company agreed to furnish certain free service and also to pay a cash con■sideration, which has already been stated. Under these circumstances the 'owners of real property in District No. 1 have only the interest, in tbe money to be reimbursed to the property owners of District No. 2 as have the other property owners in said district. The chancellor recognized this equality of interest, and rendered a decree based thereon. It follows that the decree will be affirmed. | [
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Hart, J.
(after stating the facts). The principal ground relied upon by the defendants for a reversal of the judgment is that the promise of Moraz to pay for the coal, if made, was unenforceable under the statute of frauds.
In determining whether an oral promise is original or collateral, the intention of the parties at the time it was made must be regarded; and, in determining such intention, the words of the promise, the situation of the parties, and all of the circumstances attending the transaction should be taken into consideration. Millsaps v. Nixon, 102 Ark. 435, and Black Bros. Lumber Co. v. Varner, 164 Ark. 103.
The defendants base their right to a reversal of the judgment upon that part of the plaintiff’s testimony to the effect that Moraz told him that if he would let him have the oar of coal, he would see that he got paid for it.
The contention is that this promise is collateral under the statute of frauds. This testimony, however, is not controlling. On reexamination the plaintiff stated that Moraz had agreed to pay for the car of coal. Again he stated that Moraz had repeatedly agreed to pay for all the coal that the plaintiff sold the corporation which Moraz represented. He said that the second car of coal was sold to the Dunkin-O’ Brien Company for $142.50, and that was the price that Moraz was to pay for it.
Again the plaintiff stated that he would not have given Moraz permission to unload the second car of coal unless he had agreed to pay for 'all the coal he had sold to the corporation, and also to pay for that particular car.
The court found for the plaintiff in the sum of $142, which was the price, less fifty cents, of the second car of coal.
The testimony of the plaintiff, which we have just referred to, might have been considered by the circuit court trying the cause as explanatory of the first part of the testimony of the plaintiff, to the effect that Moraz told the plaintiff that, if he would let him have the second car of coal, he would see that he got paid for it. Therefore, when the testimony of the plaintiff is considered as a whole, the circuit court was legally justified in finding that Moraz had agreed to pay the plaintiff for the second ear of coal.
On the' question of the attachment but little need be said. The evidence shows that the defendants were nonresidents, and that the drilling equipment belonged to Moraz. The ground for the attachment was that the defendants were nonresidents of the State and were about to ship their property out of the State, not leaving sufficient property therein to pay their creditors.
No answer was ever filed by the defendants denying the existence of the ground for attachment as stated in the affidavit. The record shows that the attached property belonged to M-oraz.
It follows that Dunldn was not injured by the levying of the attachment, and the effect of the judgment of the circuit court was to sustain the attachment as to Moraz. This finding was warranted under the facts as they appear in the record.
It follows that the judgment must be affirmed. | [
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McCulloch, C. J.
Appellant is a life insurance company, conducted on the mutual, or assessment, plan, and, on November 1, 1916, issued and delivered to William S. Cocherell, the husband of appellee, Anna Cocherell, a policy in one of the circles of the company, payable to appellee. William S. Cochérell died in December, 1922, and this is an action instituted by appellee on the policy against the Southern Mutual Life Association and the three individuals who signed its bond filed with the Insurance Commissioner of the State in accordance with the statute.
There is no dispute as to the issuance of the policy to Cocherell or the payment of the premiums, and no dispute that the policy was in force at the death of Cocherell, but the contention of appellants is that, under a provision of the by-laws, the company is only liable for such sum, not in excess of $1,000, “that the fund received from the assessment next preceding the death of a member against the members of the circle of which the deceased was a member shall amount,” and that “the sum received from said assessment shall, upon its delivery to the beneficiary entitled thereto, constitute payment in full of the amount due under the. said certificate. ’ ’
Appellants contended, and attempted to prove, that the last assessment preceding the death of Cocherell amounted to only the sum of $175.57, and that sum was tendered to appellee before the trial. There was a per emptory instruction in favor of appellee for the recovery of $886.50, which was the maximum amount named in the policy, $1,000, less the payment of $50 and certain premiums which were entitled to be credited.
The policy, which was introduced in evidence, recites its issuance in consideration of the application for membership, and then proceeds with the following provision:
“The value of this certificate, during the first six months after the date of the issuance thereof, is $75,. after- which time it increases at the rate of $12.50 per calendar month for seventy-four months, when it reaches its maximum value of one thousand dollars.” The application signed by Cocherell, omitting the caption, reads as follows:
“I hereby certify that I have read all the statements, questions and answers in this entire application, and hereby warrant and agree that said statements and answers, together with this declaration,' are true, complete and full, and shall be the basis of, and the consideration for, the contract hereby applied for; and I further agree that this entire application, and the certificate that may be hereafter issued hereon, together with the by-laws, rules and regulations of the association and myself, and that no statements, promises or information given by, or to, the person taking this application shall in any way affect 'this contract unless reduced to writing and presented in this application. ” '
Appellants read in evidence the by-laws' of the company, or association, a section of which reads as follows:
“The value of membership certificates representing a benefit of one thousand dollars at maturity shall increase from date of issuance as follows: The value of said certificate during the first six months of membership will be seventy-five dollars, the said value will increase thereafter at the rate of twelve dollars arid fifty cents per calendar month up to' and including the eightieth month of the life of the certificate, when it reaches the maximurii value of one thousand dollars. provided that the funds received from the assessment next preceding the death of a member, against the members of the circle of which the deceased was a member, shall amount to the sum designated on said certificate. Otherwise the sum received from said assessment shall, upon its delivery to the beneficiary entitled thereto, constitute payment in full of the amount due under the said certificate. ’ ’
The court refused to permit appellants to introduce a copy of the by-laws, and that ruling of the court is assigned as error. Conceding that the copy sought to be introduced was sufficiently authenticated and identified as the by-laws of appellant company, yet there was no prejudice in the ruling of the court, for the reason that the offered copy of the by-laws contained a preliminary recital that they were adopted by the company on September 30, 1921, and repealed all former by-laws and amendments. There was no proof, either introduced or offered, that similar by-laws were in force at the time of the issuance of the policy to Cocherell or that there was a provision authorizing a material change in the by-laws. It will be seen from a reading of the policy that it contained an unconditional promise to pay the beneficiary seventy-five dollars in case of death during the first six months, with an increase of $12.50 per calendar month for seventy-four months, until the policy reached the maximum of $1,000. In other words, if death did not occur within seventy-four months, the death claim should be the sum of $1,000. It is true the • application of Cocherell contained a recital that the policy would be issued subject to the by-laws, but that meant, of course, the by-laws as existing at the time of the issuance of the policy. Appellants therefore have failed to show any limitation upon the unrestricted liability expressed in the policy for the sum of $1,000.
Other questions discussed by counsel for appellee need not be mentioned, for the reason that, under the views expressed above, an affirmance of the judgment must result.
Judgment affirmed. | [
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Humphreys, J.
Appellee brought a replevin suit against appellants, in a magistrate’s court in Boone County, to recover a certain telephone line, boxes and switchboard, and, upon a trial of the cause, obtained a judgment for same. Appellants took an appeal from the judgment of the justice of the peace to the circuit court of said county, where there was a mistrial and a continuance of the cause to the January, 1923, term of the court. On April 2,1923, an adjourned day of the January term, appellants filed a motion to dismiss the case on the ground that the telephone line was real estate over which the justice of the peace had no jurisdiction and over which the circuit court could not obtain jurisdiction by appeal. The motion was conceded by appellee, whereupon the court dismissed the cause. On April 16, 1923, a later day in the same term of court, appellee filed a motion to set aside the judgment of dismissal and reinstate the case. It was alleged in the motion that appellee consented to a dismissal of the cause with the understanding that the parties would submit the issues involved to arbitration, but they had been unable to agree upon the arbitrators. By consent of the parties this motion was continued until the next regular term of court, which convened in July, 1923. The motion was heard during the July term, 1923, of court, and an order was made setting aside the judgment of dismissal and reinstating the case. The court then entertained and sustained a motion by appellee to dismiss appellants’ appeal from the judgment of the justice of the peace, and rendered judgment in favor of appellee on the appeal bond.
An appeal had been duly prosecuted to this court from the orders and judgment made and rendered by the trial court at the July, 1923, term thereof.
The question presented to this court for determination is whether the trial court had power to vacate the judgment rendered on April 2, 1923, dismissing the case, after the lapse of that term, except upon one of the stat utory grounds. No statutory ground was assigned for setting the judgment of dismissal aside. The court therefore lost control over the judgment of dismissal with the final adjournment of the January, 1923, term of the court, and, having lost control over same, could not vacate the judgment of dismissal at a subsequent term of the court. The continuance of the motion to reinstate the case until the next term of the court did not .prevent the court from losing control over the judgment of dismissal after the lapse of the term. The only way to have retained control over the case after the lapse of the term would have been to set the judgment of dismissal aside and continue the cause. Incorporated Town of Corning v. Thompson, 113 Ark. 237; Spivey v. Taylor, 144 Ark. 301.
The order setting aside the judgment of dismissal is therefore reversed. | [
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‘ Humphreys, J.
Appellee filed suit in the chancery court of the' Chickasawba District of Mississippi County against appellants, to set aside an execution sale of the SW14 of section 30, township 16 N., range 10 E., to satisfy a judgment in favor of Charles McKee, State Bank Commissioner, which had been assigned to Harry L. Johnson. One of .the appellants, J. T. Alford, purchased the land at the execution sale. The basis of appellee’s suit was that the land in question constituted his homestead, and that same was exempt from sale under execution of the judgment against him in favor of said Bank Commissioner. , * - '
Appellants filed an answer denying the allegations of the complaint, and, by way of further defense, pleading an estoppel.
The cause was submitted to the court upon the pleadings, testimony adduced by the respective parties, and certain stipulations filed by them, which resulted in a decree voiding the execution sale and removing same as a cloud upon the title of appellee.
The record reflects that appellee acquired a patent for the land from the United States G-overnment on April 25,1921, and continued to reside thereon after procuring the patent; that on June 21 thereafter said judgment was obtained by the Bank Commissioner in the circuit court of said district and county, and afterwards assigned to Harry T. Johnson, who had the land sold under execution to satisfy the judgment; that the judgment represented a 'balance due from appellee to the Bank of Blytheville, upon checks drawn by appellee on said bank, and which had been paid by it before closing its doors; that J. T. Alford made the highest competitive bid, and purchased the land; that appellee was present at the sale, but entered no objection nor protest.
Appellant’s first contention for a reversal is that appellee’s homestead was subject to sale under execution. Under the Constitution of this 'State, a debtor ’s homestead is exempt from levy and sale under execution issued out of any court, upon the decree or judgment, unless same is for an ■ indebtedness excepted under the provisions of the law. Const, of 1874, art. 9, § 3; Crawford & Moses’ Digest, § 5539'. The indebtedness for which, the judgment was rendered in the circuit court and upon which execution was issued did not come within the exemption specified in the Constitution and statute.
Appellant’s next contention for a reversal of the decree is that appellee was estopped from attacking the validity of the sale by his silence or failure to object or protest when the sale was being made in his hearing and presence. This contention is not sound, as § 5543 of Crawford & Moses’ Digest permits a debtor “to select and claim his homestead after or before its sale on execution.” The law goes further and permits the debtor “to set up his right of homestead when suit is brought against him for the possession thereof by the purchaser at the sale.” Dean v. Cole, 141 Ark. 177; Spurlock v. Gaikens, 146 Ark. 50. It is unnecessary to discuss whether the indebtedness represented by the judgment accrued before or after appellee was entitled to a patent to the land, for the homestead was protected from sale under execution by the homestead exemption laws of the 'State of Arkansas.
No error appearing, the decree is affirmed. | [
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Humphreys, J.
This suit was brought by appellees, W. P. Brandon, J. D. Baugh, W. W. Campbell (their attorney in fact), .S. H. Mann and W. W. Campbell, as receivers for Brandon & Baugh, and the Bank of Eastern Arkansas, at Forrest City, against appellants, George P. Walker and Ossie Walker, in the chancery court of St. Francis County, to recover rent in the sum of $2,400, with interest for the year 1925 on an undivided one-half interest in the Baugh & Walker farm, in sections 9,17,18 and 20, township 4 north, range 5 east, in said county, and to enforce a landlord’s lien against the crop raised upon said undivided one-half interest by attachment and injunction.
The rent was evidenced by note executed by George P. Walker to Brandon & Baugh, which they indorsed and delivered to their attorney in fact, W. W. Campbell, to pay an additional indebtedness they owed the Bank of Eastern Arkansas of about $2,000, for which they executed their note on the day that the rent note was assigned to W. W. Campbell, as attorney in fact for Brandon & Baugb, with, which to pay said indebtedness. The note is as follows:
“Forrest City, .Arkansas,
“February 13, 1925.
“G. P. Walker.”
“1st day of November, 1925, after date, I promise to pay to the order of Brandon & Baugh twenty-four hundred and no/100 dollars at (as) rent on the Baugh & Walker farm for 1925.
“Value received, with interest at ............ per centum per [annum.
“G. P. Walker.”
The indorsement appearing upon the back of the note is as follows:
“We hereby name, constitute and appoint W. W. Campbell ortr agent and attorney in fact, exclusively and irrevocably, for the collection of the within note, including the right to bring suit and enforce our lien therefor, and to proceed otherwise as in his judgment may seem best for the collection thereof, in our name and stead and with the same and like effect as though done by us in person, and to apply the proceeds as collected for the payment of any indebtedness we may owe the Bank of Eastern Arkansas, of Forrest City. This 25th day of February, 1925. Revenue stamps canceled 23c.
“Brandon & Baugh
“By J. D. Baugh,
“W. P. Brandon.”
Appellant filed an answer, admitting that George P. Walker executed the note, but interposing as a defense thereto two items, one being for $1,482.93 for repairs and improvements made by G. P. Walker on said lands during the years 1920-1925,■ and the other an item of $2,710, which G. P. Walker claimed was due him out of a loan procured by iall of them from S. M. Williamson & Company on said land, but which it was alleged Brandon & Baugh appropriated to their own use. In the answer and accompanying cross-bill G. P. Walker admitted that Brandon owned one-fourth interest and Baugh one-fourth interest and himself one-half interest in the land, and prayed for a partition thereof in kind, requesting that. hi£ portion be assigned to him so as to include the improvements he had made thereon, and, if it could not be divided so as to effect such purpose, that he be allowed the value of his improvements out of the proceeds thereof when sold, and that same, together with taxes paid by him upon the undivided one-half interest of Brandon & Baugh, be declared a lien upon such portion of the land as might be assigned to Brandon & Baugh.
The cause was heard by the court upon the pleadings and the testimony introduced by the respective parties, which resulted in a decree in favor of W. W. Campbell, attorney in fact of Brandon & Baugh, for the face of the note and interest, to be paid out of a check which the Walkers deposited with the clerk of the court in lieu of the crops, which had been released, by agreement, from attachment, with direction that, when collected, the amount collected should be paid to the Bank of Eastern Arkansas in satisfaction of the debt which Brandon & Baugh owed it and for which the rent note was pledged as security. The offset for improvements was disallowed, and judgment was given against the receivers of the estate of Brandon & Baugh in favor of G-. P. Walker for $769.04, the amount found by the court due Walker out of the S. M. Williamson & Company loan. The court rendered judgment in favor of Gr. P. Walker for $143.09 taxes paid by him for them, and declared same a lien on their interest in said land. A partition of the land was also decreed, subject to a mortgage which the parties had placed thereon in favor of Sweet.
An appeal has been duly prosecuted to this court from said decree.
Appellant contends for a reversal of the judgment on the ground that the improvements made by Walker ' upon the lands during the years 1920 to 1925 are attributable to the relationship of the cotenancy of the parties in the land, and were not made by Walker in part payment of his rental contracts during that period, as found by the court. The testimony reflects that G. P. Walker rented the Brandon & Baugh interests in the land during the period mentioned, and paid the rents due them under the contracts each year until 1925, without deducting ¡any amount for or claiming any deduction on account of repairs and improvements. He executed the note set out above for the rents of 1925, and never made any claim for repairs he made prior to 1925 until he was sued upon the note. .After the rent note matured, he promised Campbell that he would pay it, from time to time, without claiming any offset on account of repairs and improvements he had placed upon the property, either prior to or after he executed the note. Campbell’s testimony is undisputed upon this point, and is as follows:
“Q. Then, up to the time this suit was filed, April 9 (1926), what was your information as to whether Mr. Walker admitted owing this debt or not? A. He had admitted owing it, and told me that he would pay this note. Q. Up to the time of filing this suit, April 9, 1926, had he ever denied owing it? A. Not to me. Q. You had had several conversations with him about it? A. Yes sir. Up in the spring he offered me a note- — ■ he offered to put up a rent note of T. B. Sellers to secure $2,000 as part payment on the note. Q. .As part payment on this 1925 rent note? A. On this 1925 rent note, and pay the balance cash. Q. And that was in the spring of 1926? A.. Yes, in the spring of 1926.”
During the years 1920 to 1925 inclusive Walker did not charge Brandon & Baugh for the repairs and improvements on his books, but charged them to his farm account. In the answer filed by Walker he alleged he was entitled to an offset for the improvements on account of a contract with Brandon & Baugh to the effect that they were to pay one-half of the repairs and improvements upon the place, but he admitted in his testimony that he had no such contract with them. Brandon testified that G. P. Walker agreed to make ¡all repairs and improvements, during the period he had entire charge of the lands, at his own expense. Walker denied doing so. Baugh testified both ways on the proposition.
Walker’s payment of rent each year, without claiming anything for repairs and improvements, his failure to charge Brandon & Baugh for them on his books, his promises to pay the note to Campbell, all strongly corroborate the testimony of Brandon, and we cannot say, in this state of the record, that the finding of the chancellor to the effect that the repairs and improvements made by Walker were in part payment of the rent was contrary to a clear preponderance of the testimony.
Now, with reference to the $2,700 item claimed as an offset by Gr. P. Walker, growing out of the loan they obtained from S. M. Williamson & Company, GL P. Walker admitted, on cross-examination, he had received credit in his accounts with Brandon & Baugh for his portion of the loan, except $769.04. The court gave him a judgment for this amount as a general creditor against the receivers of Brandon & Baugh. The rent note sued upon was pledged by Brandon & Baugh for the payment of a $2,000 note and interest to the Bank of Eastern .Arkansas, and to allow an offset of $769.04 against the rent note would reduce the security below the amount necessary to liquidate the bank’s indebtedness. Again, should this offset be allowed, it would result in a preference to one general creditor of Brandon & Baugh over another. The item of $769.04 is not connected in any way with the rental contract, so that in equity the one ought to be offset against the other.
No error appearing, the decree is affirmed. | [
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Humphreys, J.
Appellants instituted suit against appellee in the chancery court of Washington County to enforce the specific performance of a contract of sale and purchase of appellee's farm, located in said county. It was alleged that appellants -contracted to buy said farm for $3,000 from appellee, and that the consideration, together with a warranty deed from her, describing the land, were placed in the First National Bank of Lincoln, Arkansas, under an escrow agreement to the effect that, when appellee furnished an abstract showing a merchantable title to the . lands in herself, the consideration of $3,000 should be paid to her and the deed delivered to appellant. It was also alleged that when the abstract was presented it contained defects, but that appellants offered to waive the defects and accept the deed to the land, the possession thereof having been surrendered to them at the time the escrow agreement was entered into.
Appellee filed an answer, admitting the escrow agreement but denying that she delivered possession of more than three rooms of her home to appellants, which the escrow agreement provided she should do, or that appellants offered to waive the defects in the title and accept the deed until after the hank- had mingled the escrow deposit of $3,000 with its other funds' and its doors had been closed on account of insolvency. She prayed for the return of her deed and the possession of the farm.
The cause was submitted upon the issue joined by the pleadings and the testimony adduced by the respective parties, which resulted in a decree dismissing appellants’ complaint for want of equity, and adjudging a return of the deed, together with possession of the farm, to appellee, from which an appeal has been duly prosecuted to this court.
The escrow agreement was entered into on the 18th day of December, 1926, and it, together with a warranty deed from appellee to appellants and the consideration of $3,000, were placed in escrow in the First National Bank of Lincoln, Arkansas. The agreement provided that, when appellee should furnish an abstract showing % merchantable title to the land in herself, the consideration of $3,000 should be delivered to her and the deed to appellants. Pending the preparation of the abstract, appellee allowed appellants to take possession of three rooms in her residence. When the- abstract was furnished, on or about the 12th day of January, 1927, appellant, Walter Foster, refused to accept it, on account of alleged defects in the title, and demanded that his money be returned to him and appellee’s deed to her. Appellee would not consent, and, in an effort to cure the alleged defects shown by the abstract, brought -suit in the chancery court of Washington County to quiet her title. During the pendency of the suit, appellee went to Oklahoma to visit her daughter. The bank failed on February 2,1927. The escrow money deposited by appellants had been mingled with the other funds of the bank, and there was only $300 in cash in the bank at the time of the failure. After the failure, appellants insisted that appellee present the claim for the escrow money to the receiver and that the escx’ow deed be delivered to them. Appellee refused to accept the claim against the bank in payment for her land, axxd the suit for specific performance followed.
The question presented by this appeal for determination is whether funds deposited ixx escrow pexxding procurement of title belong to the vendor or the vendee. The escrow agreement provided that the money and deed should remain in the bank until appellee could furnish an abstract showing a merchantable title to the laxxd in appellee. It also provided that, when appellants accepted the abstract, the bank should turn the money over to appellee. When the abstract was furnished, on January 12, 1927, appellants claimed it showed a defective title, axxd demanded a return of their money, but appellee insisted upon carrying the contract out and having further time to perfect the title. As no time was specified in the agreement for perfecting the title, appellee had a reasonable time within which to do so. Under the escrow agreement she had no right to the money untjj she perfected her title. She was attempting to do this, and without unreasonable delay, at the time the bank failed. During such period the money was the property of the vexidee and xxot of the vendor. Of coux'-se, if the money had been lost on account of an unreasoxxable delay on the part of appellee in perfecting her title, the loss should have been charged to her. Appellants should have waived the defects in the title before the bank failed, instead of waiting uxxtil after that event had happened. If they had waived the defects, the escrow agreement would have been performed. The uxxdisputed fact is that they did not waive or attempt to waive the defects until after the money had been lost.
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Annabelle Clinton Imber, Justice.
The appellant, Dickie Ray Fryar, filed for divorce against the appellee, Anna Ruth Roberts, alleging that the parties married on September 24, 1998, and praying for a division of property acquired by the parties during the marriage. Ms. Roberts denied the existence of a marriage and asked the court, in the alternative, for an order annulling the marriage on the basis of fraudulent inducement. The Nevada County Chancery Court granted summary judgment to Ms. Roberts on the basis that the parties failed to file their marriage license ■within sixty days of the date of the license and, thus, had failed to comply with the formalities necessary to create a legal marriage under Ark. Code Ann. § 9-11-218 (Repl. 1998). Mr. Fryar appeals that decision, claiming that the failure to do a ministerial act, such as returning the marriage license to the county clerk within sixty days of its issuance, cannot render a marriage void. We hold that the failure to comply with section 9-11-218 does not by itself defeat the existence of the alleged marriage in this case. Thus, genuine issues of material fact remain to be litigated as to whether a valid marriage existed between the parties. We reverse the trial court’s summary-judgment order and remand the case for trial on the merits.
Mr. Fryar and Ms. Roberts participated in a marriage ceremony on September 24, 1998. They applied for and were issued a marriage license prior to the ceremony, and the minister signed their marriage license at the ceremony. However, the parties never filed the license with the county clerk’s office after the ceremony. Mr. Fryar alleges that he and Ms. Roberts lived together for about one and one-half months following the ceremony, after which time he rented a separate house from her.
Ms. Roberts insists that the parties never intended to file the marriage license or to become legally married. She alleges that Mr. Fryar told her that his mother and daughter had knowledge of a sexual relationship between the parties and believed he would go to hell if he did not marry her. Thus, she claims Mr. Fryar proposed a “fake” ceremony to be performed by his cousin and represented to her that the marriage would not be valid. Ms. Roberts admits that, following the ceremony, she took possession of the marriage license and burned it. She alleges that the license was destroyed with the knowledge and consent of Mr. Fryar. She further claims that the parties never lived together as man and wife. In the alternative, Ms. Roberts asserts that, if the court does find the parties were legally married, the marriage should be annulled and declared void. She claims that, at the time of the ceremony, she was emotionally vulnerable due to the recent death of her husband and that she relied on misrepresentations by Mr. Fryar that the marriage would not be valid.
The trial court entered an order on October 26, 2000, granting summary judgment to Ms. Roberts on the basis that Arkansas does not recognize defacto or common-law marriages. The court cited our recent decision in Rockefeller v. Rockefeller, 335 Ark. 145, 155, 980 S.W.2d 255, 259 (1998), for the proposition that “[a] de facto marriage is similar to a common-law marriage in that both are legal fictions created when the parties have not completed the formalities necessary for creating a legal marriage.” The trial court then concluded that Ark. Code Ann. § 9-11-218 (Repl. 1998), which requires that marriage licenses be filed in the county clerk’s office within sixty (60) days from the date of the license, constituted a formality necessary to the existence of a legal marriage. Because it was undisputed that the parties in this case never filed their marriage license, the trial court ruled that they failed to “complete the requisite formalities to create a legal marriage.”
We have repeatedly held that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Stilley v. James, 345 Ark. 362, 48 S.W.3d 521 (2001). Once a moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. Id. We have also stated that summary judgment is inappropriate where, although there may not be facts in dispute, the facts could result in differing conclusions as to whether the moving party is entitled to judgment as a matter of law. Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998) (supplemental opinion denying rehearing).
On review of an issue of statutory interpretation, we are not bound by the decision of the trial court. However, in the absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Newcourt Financial, Inc. v. Canal Ins. Co., 341 Ark. 181, 15 S.W.3d 328 (2000). Here, however, we hold that the trial court erred both in its interpretation of Ark. Code Ann. § 9-11-218 and in its application of the Rockefeller decision to the case at bar.
The Arkansas Code section at issue is entitled “Return of executed license to clerk — Effect on bond” and provides:
(a) Any person obtaining license under the provisions of this act shall be required to return the license to the office of the clerk of the county court within sixty (60) days from the date of license.
(b) If the license is duly executed and officially signed by some person authorized by law to solemnize marriage in this state, the bond required by § 9-11-210 shall be deemed null and void; otherwise, it shall remain in full force and effect.
Ark. Code Ann. § 9-11-218 (Repl. 1998). Importantly, the statute does not provide that failure to return the license renders a marriage void. Rather, the only remedy provided in the statute for noncompliance is that the one hundred dollar ($100) bond required by Ark. Code Ann. § 9-11-210 when applying for a license “shall remain in full force and effect.” Section 9-11-210 expresses the legislature’s intent that a bond be issued to ensure that parties applying for a marriage license have a lawful right to such and will faithfully carry into effect and comply with the provisions of the act. See Ark. Code Ann. § 9-11-210 (Supp. 2001).
Over the past ninety years, this court has handed down several decisions on the formalities that are necessary to create a valid marriage in Arkansas. We have clearly and consistently reiterated that Arkansas does not recognize common-law marriages contracted in this state. In the 1911 decision of Furth v. Furth, the appellant claimed to be the common-law wife of the decedent. 97 Ark. 272 (1911). She did not claim that a marriage ceremony was ever performed; rather, she claimed that she and the decedent entered into a contract of marriage, following which they cohabitated until his death. Id. This court noted that a contract of marriage could not be entered into without being solemnized by some person authorized by statute to do so. Id. In holding that common-law marriages are not valid under Arkansas law, we additionally held that “our statutes regulating and prescribing the manner and form in which marriages may be solemnized are mandatory and not directory merely.” Id. at 273.
The next case addressing compliance with marriage statutes in Arkansas was the 1921 decision of Thomas v. Thomas. In that case, there was evidence that the parties had been issued a marriage license and participated in a marriage ceremony performed by a preacher. Thomas v. Thomas, 150 Ark. 43 (1921). After the ceremony, the couple turned the license over to the preacher, but the license was never returned to the county clerk as required by statute. Id. The couple subsequently lived together until Mr. Thomas’s death, and testimony of several witnesses indicated that they were regarded as husband and wife in the community. Id. This court said: “The law in this State is that marriage may be proved in civil cases by reputation, the declarations and conduct of the parties, and other circumstances usually accompanying that relation. Declarations of the parties are evidence tending to establish marriage.” Id. at 53. We found that there was sufficient testimony to establish a “ceremonial or legal marriage,” and held that the testimony was not overcome because the marriage license was not returned as required by statute. Id. We further held, “[pjroof that [the couple] procured a license as required by the statute and were married by a minister of the Gospel showed a legal marriage, and the return of the minister of that fact on the marriage license was only evidence that the marriage had been performed by him, but did not of itself constitute the marriage.” Id. The Thomas opinion held that failure to comply with the statute requiring return of the license did not void the marriage. At first glance, this language might appear to be in conflict with the language in Furth stating that compliance with our marriage statutes is mandatory. However, the language in Furth referred only to compliance with the statutes regulating solemnization of marriage. The licensing statutes are distinct from the solemnization statutes. See Ark. Code Ann. §§ 9-11-213 — 9-11-215 (Repl. 1998 and Supp. 2001). Thus, this court’s decision in Thomas is not in conflict with the Furth decision.
In 1956, this court decided the case of DePotty v. DePotty. In DePotty, as in Thomas, there was evidence that the couple in question participated in a ceremonial marriage. DePotty v. DePotty, 226 Ark. 881, 295 S.W.2d 330 (1956). The ceremony was performed by a duly qualified minister in Texarkana, Arkansas, and was valid in all respects, except that the marriage license was obtained on the Texas side of Texarkana in Bowie County, Texas, and no Arkansas license was acquired. Id. The parties were fully competent to marry, had lived together for sixteen months, and held themselves out as husband and wife. Id. Mr. DePotty, however, sought to annul his marriage on the basis that the failure to obtain an Arkansas license rendered the marriage void under Ark. Stat. Ann. § 55-201 (1947), the precursor to one of our current licensing statutes, Ark. Code Ann. § 9-11-201 (a) (Repl. 1998). Id. Section 55-201 provided that all persons contracting marriage in Arkansas were “required to first obtain a license from the Clerk of the County Court of some county in this State.” Ark. Stat. Ann. § 55-201 (1947). This court rejected Mr. DePotty’s argument, stating, “we have no statute providing that a marriage is void where no license is obtained.” Id. at 882, 295 S.W.2d at 330. We reasoned that, if the requirement of a license were mandatory, the couple’s marriage would be void; but if the statute were merely directory, the marriage would be valid. In holding that the statute was merely directory, we adopted language from a decision by the Maryland Supreme Court: “[t]he courts are generally in accord upon the proposition that a statutory provision for a license to marry shall not be regarded as mandatory, and vital to the validity of a marriage, in the absence of a clear indication of a legislative purpose that it should be so construed.” See id. at 883, 295 S.W.2d at 331 (citing Feehley v. Feehley, 129 Md. 565, 99 A. 663 (1916)). We noted the holding in Furth that the statutes prescribing the manner and form of the solemnization of marriage are mandatory, but distinguished that case on the basis that there was no marriage ceremony of any kind in Furth; whereas, in DePotty, the marriage was solemnized by a duly qualified minister.
Almost ten years later, in 1965, a different factual situation led to this court’s decision in Spicer v. Spicer regarding the validity of an alleged marriage. In that case, Brenda Jones (Spicer) filed suit for divorce against Delmas Spicer, alleging the parties were married on September 20, 1963, in Oklahoma. Spicer v. Spicer, 239 Ark. 1013, 397 S.W.2d 129 (1965). Ms. Jones contended that the couple decided to get married, drove from Hilltop, Arkansas, to the home of a justice of the peace in a small town in Oklahoma, and were issued a marriage license and married by the justice of the peace. Id. She could not, however, remember the name of the town, the county, or the justice of the peace. Id. According to Ms. Jones’s testimony, she and Mr. Spicer returned to their respective parents’ homes in Arkansas without cohabitating in Oklahoma and never established a home as husband and wife. Id. Moreover, it was undisputed that, for a period of three months after the alleged marriage, Ms. Jones lived and worked in Little Rock under the name Brenda Jones and dated other men. Id.
Mr. Spicer, on the other hand, denied ever taking Ms. Jones to Oklahoma and denied marrying her. Id. In support of his testimony, he produced authenticated affidavits from the keepers of marriage records of each county in Oklahoma, attesting that a search had been made and no record of any marriage between the parties could be found. The chancellor found the existence of a voidable marriage, decreed that the marriage was annulled, and ruled that the child born during the voidable marriage was legitimate. Id. On appeal, this court recognized that there was no contention that the parties married in Arkansas or in any place other than Oklahoma. Id. We then went on to echo our holding in Furth: “Arkansas does not recognize common-law marriages. The statutes regulating and prescribing the manner and form in which marriages may be solemnized in this state are mandatory and not directory.” Id. at 1015, 397 S.W.2d at 130. Based upon a de novo review of the record, we held that Mr. Spicer had “proved by a great preponderance of the evidence that there was no valid marriage.” Id. Though the Spicer opinion made no reference to, and possibly overlooked, the DePotty decision, it is clear that each case was decided upon particular facts that were deemed by the court to be controlling. In DePotty, there was evidence that the marriage had been solemnized; whereas, in Spicer, no credible proof of solemnization was shown.
Then, in 1981, the Arkansas Court of Appeals relied on DePotty in deciding Estate of Wright v. Vales. In the Vales case, there was no evidence that a marriage license was ever issued to or recorded by the couple in question. Estate of Wright v. Vales, 1 Ark. App. 175, 613 S.W.2d 850 (1981). The appellants in that case, like the appellee in this case, contended that, because there was no marriage license, there was no marriage. Id. The court of appeals quoted DePotty in holding that, although our statutes provide for the procurement of an Arkansas license by those contracting marriage, our marriage license statutes are merely directory and not mandatory. Id. This language is consistent with our prior case law in which we have held that failure to comply with this state’s licensing statutes, as distinguished from the solemnization statutes, does not void an otherwise valid marriage.
Finally, the trial court’s order in this case cited Rockefeller v. Rockefeller, 335 Ark. 145, 980 S.W.2d 255 (1998). That case, however, is inapposite. Rockefeller involved a property agreement incorporated into a divorce decree that set out the amount of monthly payments to be made by a husband to his ex-wife. Id. The husband filed a petition for the termination of alimony, claiming that the section of the agreement requiring termination of payments upon the wife’s remarriage should take effect because, though she had not legally entered into another marriage, she had been living with a man, had three children with him, and held herself out to be married to him. Id. The husband argued that his ex-wife was now engaged in a de facto marriage and that allowing her to avoid the consequences of marriage for her own financial gain violated the public policy of Arkansas. Id. This court affirmed the trial court in its holding that Arkansas does not recognize de facto marriages and that enforcing the agreement would not violate public policy. Id. We went on to state, as quoted by the trial court, that “[a] de facto marriage is similar to a common-law marriage in that both are legal fictions created when the parties have not completed the formalities necessary for creating a legal marriage.” Id. at 155, 980 S.W.2d at 259. The Rockefeller opinion did nothing more than recognize our long-standing refusal to validate common-law marriages contracted in Arkansas.
In Furth, Spicer, and Rockefeller, one party was attempting to establish proof of the existence of a marriage without proof of compliance with our statutes regulating solemnization of marriages. In those cases, we recited language expressing our continuous refusal to recognize common-law marriage within the boundaries of this state. The cases of Thomas, DePotty, and Vales are clearly distinguishable from the cases reiterating our refusal to recognize common-law marriage. Under the precedent established by Thomas and its progeny, proof that a marriage license was procured and a couple was married by a minister can establish a legal marriage. Thomas v. Thomas, supra. Return of the license is only evidence that a marriage has been performed and does not itself constitute the marriage. Id. Statutes requiring a marriage license shall not be regarded as mandatory in the absence of a clear legislative purpose that the statutes should be so construed. DePotty v. DePotty, supra. The failure of the parties to obtain a marriage license does not void an otherwise valid marriage. Estate of Wright v. Vales, supra.
Similarly, in the case before us, there is evidence of solemnization of the marriage in the form of a wedding ceremony. There is also evidence that a marriage license was obtained, though it was never returned to the county clerk. Mr. Fryar is not asserting that the parties here were engaged in a defacto or common-law marriage; rather, he seeks to prove the existence of a valid marriage. According to the trial court’s summary judgment ruling, there can be no valid marriage without the filing of the marriage license. Our decision today reveals authority to the contrary in instances where there is evidence that a purported marriage has been solemnized. Based upon the pleadings, affidavits, and other documents filed by the parties, we conclude that genuine issues of material fact remain to be litigated concerning whether a valid marriage existed between Mr. Fryar and Ms. Roberts. We must therefore reverse the trial court’s summary-judgment order and remand the case for trial on the merits.
In attempting to further refute any evidence of the existence of a marriage, Ms. Roberts asserts that Ark. Code Ann. § 16-119-107(a) exhibits the intent of the legislature to make the marriage license a mandatory component of a valid marriage. That statute provides for the restoration of marriage records:
(1) In cases where any marriage has been legally solemnized in any county, and the certificate of marriage required by law to be filed in the office of the recorder for the county, together with the record thereof, has been lost, destroyed, or burned, it shall be the duty of the' person who solemnized the marriage, at the request and on the demand of either of the parties between whom the marriage was solemnized, to furnish him, her, or them, under his hand, a certificate of marriage.
(2) The certificate . . . shall also set forth . . . that the original certificate of the marriage was made out by him and duly filed in the office of the clerk and recorder for the county, as required by law.
Ark. Code Ann. § 16-119-107(a)(1-2) (Supp. 1999) (Emphasis added). Ms. Roberts relies on sub-section (2) of the statute and contends that, because the statute requires the certificate to state that the original certificate was duly filed, the statute does not provide relief when the original certificate of marriage was never filed in the clerk’s office. Ms. Roberts claims that, if the law did not require the certificate to have been filed as a requisite formality to the marriage, this provision would have been made available to everyone whether or not their original certificate was filed. Ms. Roberts ignores, however, the language of the statute in subsection (1) that requires both the certificate of marriage and the county’s record thereof to have been destroyed before the statute comes into play. This indicates the legislature’s intention to remedy situations where all records of a marriage have been accidentally lost or destroyed, rather than the situation where a marriage license is duly issued but a party to the marriage intentionally destroys the marriage certificate and never files it. Thus, Ark. Code Ann. § 16-119-107(a) does not apply to this case.
Ms. Roberts also claims, in the alternative, that, if the court recognizes the existence of a marriage, she should be granted an order annulling the marriage on the basis of fraudulent inducement. Where the consent of either party to a marriage shall have been obtained by fraud, the marriage shall be void from the time its nullity is declared by a court of competent jurisdiction. Ragan v. Cox, 210 Ark. 152, 194 S.W.2d 681 (1946). As required on a summary judgment motion, Mr. Fryar met proof with proof in his pleadings by denying the existence of fraud and putting on evidence that Ms. Roberts considered herself to be his wife, including pictures of the wedding ceremony and cards given to him by Ms. Roberts signed “your wife” and “to my husband.” Thus, a material question of fact remains as to whether a fraud was perpetrated on Ms. Roberts such that a marriage between the parties should be declared void.
Reversed and remanded.
The Arkansas Office of the Attorney General has also relied on our courts’ opinions in DePotty and Vites. In Opinion No. 96-362, issued December 19, 1996, the attorney general cited both DePotty and Vales and stated: “[i]t is my opinion that under Arkansas law, the requirement of obtaining and filing a marriage license is directory rather than mandatory.” Op. Att’y Gen. # 96-362.
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Donald L. Corbin, Justice.
Appellant Joseph Rothbaum appeals the order of the Pulaski County Circuit Court dismissing his complaint against Appellees Arkansas Local Police and Fire Retirement System (“LOPFI”) and Arkansas Fire and Police Pension Review Board. We accepted certification of this appeal from the Arkansas Court of Appeals; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(d)(1). We affirm.
Rothbaum is an employee of the Blytheville Police Department and, by virtue of his employment, is a member of LOPFI. LOPFI is administered by a Board of Trustees, appointed pursuant to Ark. Code Ann. § 24-10-201 (Repl. 1996). Pursuant to Ark. Code Ann. § 24-10-203(c) (Repl. 1996), the Board is granted the authority to formulate and adopt rules governing its proceedings. Under the Board’s rules for disability hearings, once a claim has been denied, a member has six months from the date of notice of the initial determination to request the Board to conduct a reconsideration hearing. Rothbaum filed a claim for disability benefits with the Board, but his claim was denied. He then requested a reconsideration hearing, but it was also denied on the basis that he failed to request a hearing within the six-month time period.
On March 28, 2000, Rothbaum filed a complaint in circuit court stating that the Board’s refusal to review his appeal was arbitrary, capricious, and an abuse of discretion. He sought a writ of mandamus compelling the Board to consider his appeal. In response, the Board filed a motion to dismiss pursuant to Ark. R. Civ. P. 12(b)(6), asserting that Rothbaum had failed to state a claim upon which relief could be granted. A hearing was held on June 13, 2000, in which the circuit court dismissed Rothbaum’s claim for lack of jurisdiction. Rothbaum filed a notice of appeal on June 20, 2000, designating the record of the June 13 hearing as the record on appeal.
For his sole point on appeal, Rothbaum argues that the circuit court erred in dismissing his complaint and asserts that this case should be remanded with instructions requiring a review of his application for disability benefits. Strictly adhering to the mandates of our rules governing preparation of the record and briefs filed with this court, we note that the record before us is insufficient to support a review of the merits of Rothbaum’s argument.
We have repeatedly emphasized that it is the appellant’s burden to bring up a record sufficient to demonstrate error for appellate review. Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000); Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999). Moreover, any issue outside the record will not be considered on appeal. Id. Here, the record contains neither the order of the Board denying Rothbaum’s request for a hearing, nor the final order of the circuit court dismissing his cause of action. The entire basis for this appeal is that the decision of the Board denying Rothbaum’s request for an appeal was arbitrary and capricious, and thus the trial court erred in refusing to grant the writ of mandamus. Without either of these orders in the record, there is nothing before us on which to rule.
Even if we were to ignore this critical defect and review those pleadings found in the record and properly abstracted, it is clear that the circuit court’s dismissal of Rothbaum’s claim was appropriate. We review a trial court’s decision on a motion to dismiss by treating the facts alleged in the complaint as true and viewing them in the light most favorable to the plaintiff. Goff v. Harold Ives Trucking Co., 342 Ark. 143, 27 S.W.3d 387 (2000); Arkansas Tech Univ. v. Link, 341 Ark. 495, 17 S.W.3d 809 (2000). In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and all pleadings are to be liberally construed. Id.
With this standard in mind, we review Rothbaum’s complaint and conclude that he failed to state a claim entitling him to the relief of mandamus. This court has often held that mandamus is an appropriate remedy when a public officer is called upon to do a plain and specific duty, which is required by law and which requires no exercise of discretion or official judgment. Sargent v. Foster, 332 Ark. 608, 966 S.W.2d 263 (1998); Saunders v. Neuse, 320 Ark. 547, 898 S.W.2d 43 (1995). This court has held that a writ of mandamus is a discretionary remedy that will be issued only when the petitioner has shown a clear and certain legal right to the relief sought and there is no other adequate remedy available. Id. Moreover, a mandamus action enforces the performance of a legal right after it has been established; its purpose is not to establish a right. Hicks v. Gravett, 312 Ark. 407, 849 S.W.2d 946 (1993); Springdale Bd. of Educ. v. Bowman, 294 Ark. 66, 740 S.W.2d 909 (1987).
Here, Rothbaum seeks a writ of mandamus compelling the Board to review his claim for disability benefits, even though he admits that it was not filed within the time limits required under the Board’s rules. Thus, the very action that Rothbaum seeks to compel is a discretionary one. Because the time for requesting a hearing has passed, any decision by the Board to accept review of Rothbaum’s claim would be at the Board’s discretion. In other words, there is no legal requirement that the Board review any claim filed outside of the six-month period. Moreover, Rothbaum has not shown that he has a clear and certain legal right to a belated appeal, regardless of who was at fault. Accordingly, mandamus was not appropriate, and the trial court properly dismissed this action.
Affirmed.
GLAZE, J., concurs solely because appellant failed to make his record and also omitted the Board’s decision from the abstract of record.
While the addendum to Rothbaum’s brief contains a photocopy of the circuit court’s order, the order does not appear in the record. According to the record’s index, the order granting the motion to dismiss appears at page 9, but the record inexplicably skips from page 8 to page 11. | [
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Tom Glaze, Justice.
This is another appeal arising out of a Phillips County election, this time involving the election of a justice of the peace and three Democratic Committee positions elected from Justice of the Peace District 9. This particular district was created as a result of a federal district court proceeding in Varner v. Clatworthy, U.S.C.C. Case No. H-C-92-19 (E.D. Ark. 1994). In Varner, the federal district court entered a consent decree as a result of a class action lawsuit that had been brought by African-American electors in Phillips County, challenging the electoral districts for quorum court members. That decree ordered that the electoral voting districts for the quorum court shall be in accordance with an attached map with descriptions made a part of the decree. Significant to the instant case, the map created and established in the Varner case has been used by Phillips County election officials in all of the county elections since 1994; this includes the May 23, 2000, Democratic primary election in issue here.
Appellant Delaney Alexander and appellee Geraldine Davis timely filed as Democratic candidates for justice of the peace for District 9, and appellants Lyle Wheeler,Travis Williams, and Kim Heagwood and appellees Alma Davis, Ozell Davis, and Rosetta Davis filed respectively as Democratic candidates for positions 1, 2, and 3 as committee members from District 9. After the May 23 election, the Phillips County Election Commission met on May 26, 2000, to certify the election results, which showed the following tallies:
Justice of the Peace for District 9
Delaney Alexander 498
Geraldine Davis 412
Position 1
Lyle Wheeler 475
Alma Davis 427
Position 2
Travis Williams 461
Ozell Davis 430
Position 3
Kim Heagwood 499
Rosetta Davis 419
The commission’s certification was filed on May 31, 2000. On June 15, 2000, appellees filed a complaint in Phillips County Circuit Court contesting the election pursuant to Ark. Code Ann. §§ 7-5-801, et seq. (Repl. 2000), and asserting that unlawful votes had been cast for the appellants and that the appellees should be certified as winners. Alternatively, appellees alleged the four appellants, plus the Phillips County Election Commission, had deliberately and unlawfully violated appellees’ rights and, consequendy, the court should void the justice of the peace and committee member races.
On October 23, 2000, the parties presented all their witnesses, evidence, and arguments, and the trial judge took the matter under submission, but did not enter his decision until December 29, 2000. In his December 29 order, the judge ruled the appellees had failed to meet their burden in contesting the votes cast and certified in the races for justice of the peace and the three committee member races. The judge explained the appellees “had failed to carry their specific burden that there was a specific and identifiable number of ifiegal votes cast for the appellants that would allow him to declare with some reasonable certainty the winners of the [May 23, 2000] election.” However, the judge further held appellees prevailed on their alternative prayer for relief that the District 9 races should be declared void because the appellants were not qualified for the office or positions they sought, since they resided outside District 9. The judge further found that voters residing outside District 9 were allowed to vote in the May 23 election. The judge based his ruling on the case of Patton v. Coates, 41 Ark. 111 (1883). The judge’s decision was erroneous.
We first point out both parties’ tardiness in joining the issues concerning whether the appellants were qualified to have their names on the May 23 ballot. In Jenkins v. Bogard, 335 Ark. 334, 980 S.W.2d 548 (1998), we cited Ark. Code Ann. § 7-5-207(b), which provides that “[n]o person’s name shall be printed on the ballot as a candidate for any public office in the state at any election unless the person is qualified and eligible at the time of the filing as a candidate for office, to hold the public office for which he is a candidate. . . .” The Jenkins court further stated that the proper means of enforcing § 7-5-207(b) is to petition for mandamus and declaratory judgment. See also State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989). In Jenkins, the court also emphasized that Ark. R. Civ. P. 78(d) was the procedural vehicle by which an election proceeding could be expedited in order to enforce § 7-5-207(b), since that rule provides that a hearing be held no sooner than two days and no longer than seven days after the fifing of a petition for writ of mandamus in an election matter. Jenkins, 335 Ark. at 339. However, the court further stated that our cases have not suggested that the violation of the two-to-seven day provision would deprive the court of jurisdiction. Id. The Jenkins court then proceeded to hold that the trial court’s failure to hold a timely hearing in that election case did not deprive the trial court of jurisdiction, thus making it clear that it was up to the candidate (Jenkins) to have objected to the trial court’s failure to hold the hearing within the time requirements set out in rule 78(d). Id. at 340.
In the instant case, the appellees failed to file their complaint for declaratory judgment and writ of mandamus in a timely fashion, but instead waited until after the May 23 election to request the trial court to rule the appellants were not qualified to hold the office or positions they sought. Appellees interposed no objections to the delay until October 2000.
Even though appellants delayed in bringing their challenge to appellees’ allegations regarding appellants’ qualifications, appellees’ arguments still must fail. As mentioned already, while the trial judge ruled the appellees had failed to prevail on their election-contest allegations, the judge found merit in their alternate cause of action and voided the appellants’ election. The judge based his ruling on the early case of Patton v. Coates, 41 Ark. 111 (1883). The judge’s reliance on Patton is clearly misplaced.
As noted by the appellants, the Patton case demonstrates the very worst in Arkansas reconstruction politics when fraud and intimidation of voters were rampant. The trial court’s findings in Patton illustrated this fact by relating the following:
[With regard to Eagle Township,] quite a number of illegal votes were cast for plaintiff by non-residents. That in one or two instances legal voters who had desired to vote for Patton were rejected. That an armed force was around the polls all day. That they were armed with needle guns, rifles and shot guns, and that those so armed were colored men (with one exception) and supporters of the plaintiff. That these guns were stacked immediately around the polls. That fifiy-three men had guns in the afternoon of the day of the election, and that quite a number of them, with their guns, accompanied the officers who brought up the returns to the county clerk.
With regard to Eastman [Township, the judge found]: That early in the morning even before the polls were opened, a large crowd of colored men, ranging from two hundred to four hundred, surrounded the polls, a large majority of whom were supporters of plaintiff, and by their conduct made it exceedingly difficult for a colored man, desirous of supporting defendant to deposit his ballot. That supporters of plaintiff would forcibly take their ballots from them, threaten to burn their houses, throw them into the river, turn them out of church, &c., in case they voted for the ticket upon which defendant was a candidate. That, in certain circumstances, voters were so intimidated as either to leave the polls without voting, or had to be conducted to the polls under the protection of white citizens. That one Moore, a colored man, declined to go to the polls because he would not be allowed to vote as he saw fit. That one Andrew Jackson, a resident of Mineral township, presented himself as a voter of Eastman polls, and was challenged. That said Jackson told one of the judges (George Scott) that he lived in Mineral township. That, notwithstanding this, said Scott allowed him to vote, without swearing him, and without calling the attention of the other judges thereto. That some twelve or fifteen men in one crowd, desiring to vote “the people’s ticket,” were furnished tickets, and in attempting to vote were set upon by a much larger crowd of supporters of plaintiff, their tickets taken from them, and only two voted as they wished.
Patton, 41 Ark. at 135-36.
This supreme court in Patton, recognizing the narrow limits that must be followed in exercising its powers to void an election, said:
Upon the other hand, it devolves upon the courts not to press this principle too far, nor apply it lightly to slight indications of fraud, violence or intimidation. Its application, indeed, is a matter of the greatest and most anxious responsibility, inasmuch as it involves, necessarily, the disfranchisement, in the particular election, of all the honest voters of the township. The wrong should appear to have been clear and flagrant, and in its nature diffusive in its influences, calculated to effect more than can be traced, and sufficiently potent to render the result really uncertain. If it be such, it defeats a free election, and every honest voter and intimidated or deceived voter is aggrieved thereby. It is his interest to sacrifice his own vote to right the evil. If it be not so general and serious, the court cannot safely proceed beyond the exclusion of particular illegal votes, or the supply of particular legal votes rejected. (Emphasis added.)
Id. at 126 (emphasis added).
In 1956, this court in Baker v. Hedrick, 225 Ark. 778, 285 S.W.2d 910, stated that it is a serious matter to throw out an entire election, and that result should not be reached unless the contestant has offered proof sufficient to satisfy the test in Patton v. Coates. In the more recent case of Henard v. St. Francis Election Commission, 301 Ark. 459, 783 S.W.2d 598 (1996), this court spoke in the following restrictive terms when considering voiding an election:
This court has said that while we do not condone disregard of the state’s election laws, we are nevertheless reluctant to void an entire election on the basis of a slight deviation from the statutory requirements. The failure to comply with the letter of the law of election officers, especially in matters over which the voter has no control, and in which no fraud is perpetrated, does not as a general rule render an election void, unless the statute expressly makes it so. Allen v. Ranklin, 269 Ark. 517, 521, 602 S.W.2d 673, 675 (1980) (quoting Goggin v. Ratchford, 217 Ark. 180, 229 S.W.2d 130 (1950). None of the improprieties alleged by appellants appear to have affected the outcome of this election.
Interestingly enough, the trial judge in the instant case recognized the limited power of a court to void an election by his own language contained in his judgment:
The Plaintiffs have alleged, in fairly particular terms, an alternate cause of action recognized by our supreme court as early as 1883. In Patton v. Coates, 41 Ark. 111 (1883), our supreme court was clear in its holding that a showing of receipt of the majority of the lawful votes was but one avenue in matters such as these. The Court is empowered to declare an election void where: the wrong should appear to have been clear and flagrant; and in its nature, diffusive in its influences; calculated to effect more than can be traced; and sufficiently potent to render their results uncertain. If it be such, it defeats a free election, and every honest voter and intimidated or deceived voter is aggrieved thereby ... If it be not so general and serious, the court cannot safely proceed beyond the exclusion of particular illegal votes, or the supply of particular legal votes rejected. King v. Davis, 324 Ark. 253, 256, 920 S.W.2d 488, 490 (1996) (citing Patton, supra) [emphasis added].
After espousing the foregoing language, the trial judge nevertheless deduced that the record before him showed that the appellants were not qualified for the office (or position) sought by reason of their residencies being located outside of Justice of the Peace District 9. The trial judge also found that voters residing outside District 9 had been improperly allowed to vote in the May 21, 2000, election. There, significantly, the trial judge found no charges of fraud or intimidation were shown, nor were such charges argued by appellees in this appeal. In fact, the only evidence offered by appellees regarding illegal votes being cast at the May 23 primary election, involved whether some voters, who allegedly resided outside Justice of the Peace District 9, had voted illegally in the District 9 races. As discussed earlier in this opinion, the Phillips County Board of Election Commissioners complied with the 1994 federal district court’s map and descriptions in the Varner decision when conducting the May 23, 2000, election. Appellees unquestionably resided within the District 9 boundary lines as those lines were described and established in Varner, in addition, the electors had complied with the Varner decree by residing and casting votes in that precinct and district.
In rendering his decision, the trial judge appeared to rely on testimony given by former Phillips County Election Commissioner, Marvin Jarrett, who related that the Varner map had been originally established by census tracts and block numbers. Jarrett testified that more recent census tracts and county maps reflect changes that had occurred which had modified the original District 9 boundary, causing appellants and many voters to now reside presently outside District 9 and placing them presently in different justice of the peace districts and voting precincts. However, nothing in the record reflects that appellees (or anyone else, for that matter) brought an action in federal district court to modify or revise the district boundaries established by the Varner court, and the trial judge does not make it clear how the Phillips County election officials could lawfully ignore the district and precinct boundaries established in Varner.
It is our view that the Phillips County Board of Election Commissioners and county clerk acted lawfully when complying with the 1994 Varner consent decree and its map and descriptions. Certainly these officials’ good faith cannot be questioned when those Phillips County election officials merely followed the Varner decree as their predecessors had done in all elections held in that county since 1994. At this point, we also note Arkansas’s well-established rule that election procedures are mandatory before an election but are only directory after the election. See Allred v. McLoud, 343 Ark. 35, 31 S.W.2d 836 (2000); see also Spires v. Compton, 310 Ark. 431, 837 S.W.2d 459 (1992) (appellants did not seek to remedy a precinct boundary problem until after the election, and the court, in upholding the election, stated that the rule, providing precinct boundaries after an election are directory, undergirds the stability of elections by making it more difficult to set aside an election because of an inadvertent or technical violation of an election law provision). Here, appellees had every opportunity to question the district and voting precincts established in Varner, yet they failed to do so prior to the May 23 election when they could have readily avoided undertaking the extreme remedy of setting aside or voiding the District 9 races. For the reasons above, we hold the trial judge erred in declaring the District 9 races void. And because the appellants’ election certifications were valid, the trial judge’s decision declaring the appellees, as incumbents, entitled to hold over, is also erroneous.
In conclusion, we address appellees’ motion to dismiss this appeal because the appellants failed to file their notices of appeal within seven calendar days from the date of the entry of the judgment in an election contest, as provided under Ark. Code Ann. § 7-5-810 (Repl. 2000). Appellees argue that appellants’ untimely filing of their notices of appeal renders this court without jurisdiction to decide this appeal. Appellees are mistaken; that provision simply is not applicable to this proceeding. That provision clearly reflects that it applies to election-contest proceedings as authorized in Ark. Code Ann. §§ 7-5-801, et seq. (Repl. 2000). The trial judge in this case rejected appellees’ election-contest claims, and appellees filed no appeal from that ruling. What appellants challenge in this appeal is the trial judge’s decision to void the appellants’ and appellees’ primary races. In short, this part of the trial judge’s ruling does not concern an election contest action as that right of action is described in § 7-5-801. Therefore, we deny appellees’ motion to dismiss.
We reverse and remand this case with directions for the trial court to enter an order consistent with our holdings set out in this opinion. Such an order shall include recognizing that appellees are not entitled to retain their offices or positions as holdovers since appellants were lawfully certified as winners in their respective races. | [
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Tom Glaze, Justice.
This case presents us with the opportunity to clarify the law as it pertains to “total disability” clauses in insurance policies. At issue is whether or not a cardiologist was totally disabled following an accident which left him unable to perform many of the duties of his occupation.
In 1994, Dr. Todd Gammill purchased two disability insurance policies — an individual disability income policy and business overhead expense policy — with Provident Life and Accident Insurance Company, listing his occupation on the application as “invasive cardiologist.” Under the terms of the policies, Provident was to make monthly benefit payments in the event Dr. Gammill should sustain total disability as defined in the policies. Prior to December of 1995, Dr. Gammill operated as a solo practitioner in the field of cardiology in Hot Springs. On December 22, 1995, he was severely injured in an automobile accident; within hours of that accident, he suffered a cerebral stroke as a result of the dissection of the left carotid artery in his neck. Following his stroke, he experienced significant impairment in motor skills and a marked loss of sensitivity in his right hand. He also aggravated an earlier back injury. As a result of his injuries, Dr. Gammill was forced to cease his practice of invasive cardiology, although, with the assistance of other doctors and medical personnel, he was able to maintain part of his noninvasive cardiology practice upon joining a cardiology clinic in Little Rock as a salaried employee.
After his accident, Dr. Gammill filed a claim with Provident, and beginning April 1, 1996, the insurance company began making payments under the total-disability provisions in the policy. However, in February of 1997, Provident requested that an independent neurologist examine Dr. Gammill. That doctor subsequently opined that Dr. GammilTs disability prevented him from performing any invasive cardiac procedures, and that his motor and sensory losses would be permanent. Despite this evaluation, Provident concluded that Dr! Gammill was continuing to work in his profession, and thus suspended payments of monthly total-disability benefits in April of 1997. However, after Dr. Gammill and his attorney contacted the insurer, total-disability payments were restored after about seven months, with Provident making payments under a reservation of rights.
In December of 1997, Provident filed a complaint for declaratory judgment, asserting that Dr. Gammill continued to perform the substantial and material duties of a cardiologist, and was thus not totally disabled under the terms of the policy. Dr. Gammill answered, and also filed a counterclaim against Provident, alleging breach of contract and bad faith and seeking payment of additional benefits, to which he alleged he was entitled under his policy. The parties filed cross-motions for summary judgment, and after a hearing, the trial court denied Dr. GammilTs motion, but granted Provident’s, ruling that Dr. Gammill was still capable of performing the “majority” of the duties as a cardiologist and was, in fact, working as a cardiologist.
On appeal, we must construe the phrase “total disability.” First, however, we must deal with the procedural issues raised by Provident. Citing Liberty Mutual Ins. Co. v. Thomas, 333 Ark. 655, 971 S.W.2d 244 (1998), the insurer asserts that we cannot review the denial of Dr. Gammill's motion for summary judgment. While ordinarily an order denying a motion for summary judgment is not an appealable order, such an order is appealable when it is combined with a dismissal on the merits that effectively terminates the proceeding below. See Ark. R. App. P. 2(a)(2); Robinson v. Beaumont, 291 Ark. 477, 725 S.W.2d 839 (1987); Karnes v. Trumbo, 28 Ark. App. 34, 770 S.W.2d 199 (1989). Here, the trial court granted Provident’s summary judgment, and at the same time, denied Dr. GammilTs, dismissing his claims with prejudice. In these circumstances, Dr. Gammill may properly appeal the trial court’s denial of his summary-judgment motion.
Provident also contends that Dr. GammilTs arguments regarding the ambiguity of the policy were not preserved because the trial court did not rule on them. We dismiss this suggestion as well, because the trial court, in ruling in favor of the insurer, concluded that the relevant policy terms were unambiguous. Had the court determined that the terms were ambiguous, it would have been required, as a matter of law, to rule in favor of the insured, Dr. Gammill, because there was no disputed extrinsic evidence offered in connection with the summary-judgment motions on the meaning of “total disability.” See, e.g., Farm Bureau Mutual Ins. Co. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000); Smith v. Prudential Prop. & Cas. Ins. Co., 340 Ark. 335, 10 S.W.3d 846 (2000). Therefore, we now turn to the issue presented on appeal: was Dr. Gammill totally disabled within the meaning of the policy issued by Provident?
Arkansas has grappled with the issue of what constitutes “total disability” since at least 1910. In that year, this court decided the case of Industrial Mutual Indemnity Co. v. Hawkins, 94 Ark. 417, 127 S.W. 451 (1910), wherein it affirmed the trial court’s refusal to give the insurer’s requested instruction, which would have required the jury to find that, in order to be totally disabled, the insured would have to be “preventfed] . . . from the prosecution of any and every kind of business.” The court in Hawkins noted authorities that instructed that “[t]otal disability exists, although the insured is able to perform occasional acts, if he is unable to perform any substantial portion of the work connected with his occupation,” id. at 420, and concluded that to use the instruction proffered by the insurer would have meant that an insured could not recover “unless he sustained an injury that rendered him absolutely helpless both mentally and physically.” Id. at 421. Because such an interpretation of “total disability” would make it virtually impossible for an insured ever to recover, the court held in favor of the insured.
In the years since the Hawkins decision, this court has had numerous occasions to consider similar questions. In each case, the outcome has depended on the policy definition of “total disability,” but nevertheless, the general consensus of most of these cases was that an insurance policy requiring the insured to be “totally disabled” “[does] not require that he shall be absolutely helpless, but such a disability is meant which renders him unable to perform all the substantial and material acts of his business or the execution of them in the usual and customary way.” Aetna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 3S.W.2d 10 (1930); see also Mutual Lfe Ins. Co. of New York v. Dowdle, 189 Ark. 296, 71 S.W.2d 691 (1934) (disability is total if it prevents a party from performing acts necessary to the prosecution of his business in substantially the usual and customary manner).
A handful of cases from the 1940s appeared to take a more literal or restrictive approach to construing disability policies, holding that where an insured was unable to work at his occupation but could still perform “some work,” he would be precluded from recovering under the policy. See Metropolitan Lfe Ins. Co. v. Guinn, 199 Ark. 994, 136 S.W.2d 681 (1940); General American Lfe Ins. Co. v. Chatwell, 201 Ark. 1155, 148 S.W.2d 333 (1941). However, in Alexander v. Mutual Benefit Health & Accident Ass’n, 232 Ark. 336 S.W.2d 64 (1960), this court rejected the rationale of cases like Guinn and Chatwell, concluding that such reasoning was inconsistent with other cases that utilized a more liberal construction of disability policies. The Alexander court suggested the court’s decisions defining total disability were inconsistent and attempted to clarify them, stating that it was “unwilling to follow” those cases that strictly interpreted total disability clauses. Justice George Rose Smith, writing for the court, noted that the court has more “consistently refused to construe such clauses literally, for in that event the insured could recover only if he were continuously and helplessly confined to his bed.” Id. The court in Alexander held that the issue of total disability was a question of fact for the jury, and that substantial evidence existed to support the jury’s findings in that case.
Subsequent cases have consistently applied this liberal construction. For example, in Avemco Life Ins. Co. v. Luebker, 240 Ark. 349, 399 S.W.2d 265 (1966), this court rejected the insurance company’s contention that a jury instruction on total disability “should contemplate such a state of disability as to prevent the insured from performing all (rather than any) of the substantial and material acts necessary to the prosecution of his business.” Avemco, 240 Ark. at 351-51 (emphasis in original). Rather, in affirming the jury’s finding of total disability, the court noted that in more recent cases, it had approved jury instructions using the word “any” as appropriate under the more liberal rule to which the court adhered.
Similarly, in Continental Cas. Co. v. Davidson, 250 Ark. 35, 463 S.W.2d 652 (1971), the insured had a policy that was to pay him total-disability benefits “[w]hen, as a result of an injury . . . the insured is wholly and continuously disabled and prevented from performing each and every duty pertaining to his occupation.” Davidson, 250 Ark. at 37. The insurer had requested an instruction which would have had the jury find against the insured if it believed he was unable to perform “all the substantial and material acts necessary to the prosecution, in a customary manner, of any occupation or business for which [he was] reasonably qualified . . .” This court rejected Continental Casualty’s argument, stating as follows:
[I]t can be said that [the instruction is] ambiguous in that [it] would require [the insured] to be unable to perform all the substantial and material acts necessary to the prosecution, in a customary manner, of ány occupation or business for which the insured is reasonably qualified by reason of his education, training and experience. It is only necessary that he be unable to perform any of such acts in order to qualify for benefits. [Citing Avemco and Alexander.] We clearly expressed a preference for an instruction using the word “any” in Avemco. If the words “any of’ had been substituted for “all” in the offered instructions, appellant would have clearly been entitled to have one of them given.
Id. at 42-43.
The most recent discussion of the total-disability issue is found in Colonial Life & Accident Ins. Co. v. Whitley, 10 Ark. App. 304, 664 S.W.2d 488 (1984), in which the court of appeals summarized seventy years of cases on the subject. The Whitley court stated the controlling rule in these cases as follows:
[I]t is only necessary that it be shown that he is unable to perform any one or more of the substantial or material acts of his occupation in his usual and customary manner. Nor does the mere fact that one continues to work at his regular job establish a lack of disability. It is only a factor to be considered, and where an insured is able to continue his employment with the aid of his fellow employees or in some manner other than his usual and customary one, he may still be “disabled. ”
Whitley, 10 Ark. App. at 307-08 (citations omitted; emphasis added).
We agree that Whitley sets out the correct statement of the law, and the only question left to be decided is whether or not Dr. Gammill falls within Provident’s definition of “total disability.” “Total disability” was defined in Provident’s insurance policy to mean that “due to injuries or sickness you are not able to perform the substantial and material duties of your occupation.” Dr. Gammill’s occupation under the policy was listed as being a cardiologist.
We note at this point that the present case is before us in a different procedural posture than any of the other cases cited. In each of those instances, this court was reviewing a jury’s verdict to determine if the facts were sufficient to support a finding of total disability. Here, however, the appeal is from an order granting summary judgment, and the parties have agreed that the facts are undisputed.
As discussed above, we agree with Dr. Gammill that the controlling law here is whether he can perform any of the substantial and material acts of his occupation in his usual and customary manner. In this respect, Provident concedes that Dr. Gammill can no longer perform at least three substantial and material duties of his occupation as a cardiologist. First, Dr. Gammill cannot perform invasive procedures at all. Second, because of the injuries to his back, he cannot conduct hospital rounds on his patients. Finally, due to the loss of sensitivity in the fingers of his right hand, he cannot complete cardiovascular exams on his patients in his usual manner, because he cannot feel cardiac impulses in the patients’ chests. More specifically, Dr. Gammill’s injuries compelled him to close his solo practice in Hot Springs and to join a clinic in Little Rock so that other doctors can help him with his duties. He works one-half of the weekly hours he used to work, and he has fifty percent fewer patients. Provident does not controvert these factual matters, and indeed, in oral arguments before the trial court, agreed that it was “appropriate ... to accept the facts as recited” by Dr. Gammill in three affidavits. Thus, the facts contained in the record are sufficient to decide the case, and our task is simply to decide whether the trial court correcdy interpreted the law as applied to these undisputed facts. We conclude that it did not.
As noted above, the policy Provident issued to Dr. Gammill provided that he would be considered totally disabled if he were to become unable to perform “the substantial and material duties of [his] occupation.” This definition does not speak in terms of “any,” “all,” “some,” or “a majority” of the insured’s duties, and since different reasonable interpretations can be given this policy’s definition of total disability, the policy must be construed in favor of the insured, Dr. Gammill. See Smith, 340 Ark. 335, 10 S.W.3d 846. Even though Provident’s policy definition fails to specify or quantify what total disability means, the trial court attempted to do so by inserting the statement that Dr. Gammill could still perform “the majority” of his duties and was therefore not totally disabled. However, none of Arkansas’ cases lend themselves to such an interpretation. Simply stated, whether an insured can perform “the majority” of his duties is not the correct standard. Once again, the relevant inquiry is whether the insured is prevented from performing any of the substantial and material duties of his occupation, and as already stated above, Provident concedes that Dr. Gammill is prevented from performing three of the substantial and material duties necessary to being a cardiologist. Applying the correct standard, we conclude that the trial court erred in granting summary judgment in Provident’s favor. As the facts are settled and undisputed by either party, it is unnecessary for this court to remand this issue for further development.
We do, however, need to address Provident’s argument that Insurance Department Rule and Regulation 18 supplants this court’s caselaw and that it, rather than our holdings, controls the outcome of this case. Provident asserts that Regulation 18 provides that total disability may be defined by insurers as the inability to perform all of the substantial and material duties of one’s regular occupation. During oral arguments, Provident also argued that Regulation 18 states that “total disability” cannot mean one material and substantial duty. We disagree. That regulation, governing the kinds of policies that insurance companies may issue, provides merely that “[a] general definition of total disability shall not be more restrictive than one requiring the individual to be totally disabled from engaging in any employment or occupation for which he is or becomes qualified by reason of education, training or experience and not in fact engaged in any employment or occupation for wage or profit.” This language is not made a part of the contract between the insurer and the insured, and it merely sets a floor or a minimum standard for total-disability policies. It certainly does not supplant or replace this court’s holdings on the construction of insurance policies, and we reject Provident’s argument to the contrary.
Because we reverse and remand for entry of judgment with respect to Dr. Gammill’s first point on appeal, we find it unnecessary to address his second and third points regarding waiver and estoppel. However, Dr. Gammill also raises an argument regarding certain additional benefits under his policy. The so-called “UPDATE” provision in his policy provided that he would be able to receive automatic increases in the monthly benefit paid for total disability. The clause at issue stated as follows:
This provision provides automatic increases in the Monthly Benefit for Total Disability shown on Page 3. . . . An UPDATE increase will apply to a Period of Disability which starts after the effective date of the increase. It must qualify as a separate Period of Disability. If the premium for the policy is being waived on the effective date of the increase, the premium for the increase will also be waived. When you resume paying premiums for the policy, you must also start paying the premium for the increases.
The emphasized language is the portion to which both sides point in support of their argument. Dr. Gammill contends that he was entitled to UPDATE benefits because he was within a period of disability that started after the effective date of the increase. His period of disability started on December 22, 1995, and the effective date of the “First UPDATE Increase” was, according to the policy, July 18, 1995. Provident, on the other hand, contends that an UPDATE increase does not apply to an existing period of disability, and that upon disability, benefits begin to be paid — and stay — at the level of the most recent UPDATE increase because additional premiums for the higher UPDATE benefits have not been paid.
Thus, there is an ambiguity inherent in the UPDATE provision concerning the effective date of the increase and the question of whether an increase applies during a “period of disability.” Our general rule has been stated many times: “If. . . the policy language is ambiguous, and thus susceptible to more than one reasonable interpretation, we will construe the policy liberally in favor of the insured and strictly against the insurer.” Norris v. State Farm Fire & Cas. Co., 341 Ark. 360, 16 S.W.3d 242 (2000). The exception to this general rule is where disputed extrinsic evidence is offered to establish what the ambiguous language means. See Smith, 340 Ark. 335, 10 S.W.3d 846. No disputed extrinsic evidence was offered in connection with the motions for summary judgment on the UPDATE provision. Applying the general rule, and construing the ambiguous term regarding the UPDATE benefits in Dr. Gammill’s favor, we conclude that he was entitled to those benefits under the terms of the policy.
The order of the trial court is reversed, and the matter remanded for entry of judgment in favor of Dr. Gammill.
Invasive cardiology involves procedures whereby the cardiologist physically invades the patient’s body, either by breaking the skin or entering through the mouth; common invasive procedures include things such as catheterizations, angiograms, pacemaker insertions, angioplasty, coronary stinting, and other such procedures.
All cases cited have dealt with the proper definition or use of total disability in the context of whether properjury instructions were given or whether a directed verdict should have been granted.
Dr. Gammill cannot perform this latter task with his left hand, either, as he lost the tips of the first two fingers on that hand in an unrelated accident years ago.
Provident asserts that Dr. Gammill did not preserve this point because the trial court did not rule on the issue. We disagree. When the trial court found that Dr. Gammill was not entitled to any benefits, it impHcidy found that he was not entitled to the UPDATE benefits. | [
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Robert L. Brown, Justice.
Appellant Brad Cotten appeals the dismissal of his complaint and asserts two grounds for reversal: (1) the trial court clearly erred in dismissing his illegal-exaction lawsuit and denying the injunction on grounds of mootness, and (2) attorney fees should be allowed under these circumstances, where the City of Flaskell rescinded its policy of renting its equipment to individuals as a result of this litigation. We conclude that neither point warrants reversal, and we affirm.
At the time of the events that give rise to this appeal, Brad Cotten (Cotten) was an alderman of the City of Haskell (City) in Saline County. Appellees Boyd Fooks, Mark Jackson, Tim Findley, Jimmy Henshaw, Jeff King, Sherry Perry, and Hal Baker were also aldermen of the City. The City’s mayor was appellee Jeff Arey. On April 19, 1999, Cotten had his attorney send a letter to the City’s attorney, asserting that the appellees had allowed private citizens to borrow and use City equipment for private purposes. The letter requested that the practice cease and informed the City’s attorney of the existence of photographs Cotten had taken proving his allegations. On September 1, 2000, as a result of Cotten’s complaints, the mayor implemented a new policy by memorandum regarding City equipment. The new policy permitted backhoes, dump trucks, and other heavy equipment to be rented from the City, at the mayor’s discretion, at a rate of $40 per hour. On October 19, 2000, Cotten filed a complaint against the appellees in which he alleged that the City was engaged in an illegal exaction with its rental policy which allowed private citizens to rent City equipment to improve their residences and farms. He sought an injunction prohibiting the City from allowing private use of the equipment under the new rental policy or otherwise.
On October 23, 2000, the City answered the complaint and denied the allegations. That same day, Mayor Arey adopted a new policy for the City in which he rescinded the September 1, 2000 policy and expressly prohibited any private use of City equipment. The new policy stated: “No person shall use any City equipment for anything other than the benefit of the City.” In light of the new policy, the City moved to dismiss Cotten’s complaint on the basis of mootness one week later. After a hearing on the motion, the trial court agreed with the City and dismissed the case as moot.
We first address Cotten’s contention that the trial court clearly erred in finding his cause of action to be moot and in dismissing his complaint. According to Cotten’s theory, the City is still free to go back to its old ways and adopt the rental policy. Hence, Cotten urges that this matter is not moot and that the trial court should enter an injunction specifically halting the conduct which forms the basis of his complaint.
When reviewing a decision by the trial court on a motion to dismiss, this court treats the facts alleged in the complaint as true and views them in the light most favorable to the plaintiff. Hames v. Cravens, 332 Ark. 437, 966 S.W.2d 244 (1998); Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994). In addition, this court reviews equity cases de novo on the record, and we will not reverse a finding by the trial court unless it is clearly erroneous. O’Fallon v. O’Fallon, 341 Ark. 138, 14 S.W.3d 506 (2000).
As a general rule, the appellate courts of this state will not review issues that are moot. See Forrest Constr. Inc. v. Milam, 345 Ark. 1, 43 S.W.3d 140 (2001); Dillon v. Twin City Bank, 325 Ark. 309, 924 S.W.2d 802 (1996). To do so would be to render advisory opinions, which this court will not do. McCuen v. McGee, 315 Ark. 561, 868 S.W.2d 503 (1994). We have generally held that a case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. See Forrest Constr. Inc. v. Milam, supra; Quinn v. Webb Wheel Products, 334 Ark. 573, 976 S.W.2d 386 (1998); Dillon v. Twin City Bank, supra.
This court has recognized two exceptions to the mootness doctrine, one of which involves issues that are capable of repetition, yet evade review. See, e.g., Quinn v. Webb Wheel Products, supra.; Robinson v. Arkansas State Game & Fish Comm’n, 263 Ark. 462, 565 S.W.2d 433 (1978) (authority of courts to enter temporary orders despite expiration of the particular orders being litigated); Cummings v. Washington County Election Comm’n, 291 Ark. 354, 724 S.W.2d 486 (1987) (addressing question of candidate’s eligibility to run for office despite completion of election cycle).
The other mootness exception concerns issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. This exception arose early in our caselaw and continues today. See, e.g., Forrest Constr. Inc. v. Milam, supra (holding that an issue is a matter of substantial public importance where it involves the use of property in a large subdivision and involves the rights of a large number of people); Duhon v. Gravett, 302 Ark. 358, 790 S.W.2d 155 (1990) (holding that the question of the constitutionality of Arkansas’s judgment enforcement statutes was a substantial question that merited review despite mootness of actual controversy); Owens v. Taylor, 299 Ark. 373, 772 S.W.2d 596 (1989) (holding a substantial issue remained, despite mootness, as to whether conditions could be imposed on a defendant’s release from State Hospital when he was scheduled to stand trial); Cain v. Carl-Lee, 171 Ark. 155, 283 S.W. 365 (1926) (following the rule in Wilson); Wilson v. Thompson, 56 Ark. 110, 19 S.W. 321 (1892) (addressing issues despite mootness because “the cause was of practical importance”).
There is no doubt that the City’s adoption of its new policy on October 23, 2000, rendered this lawsuit moot. Cotten sought in his complaint only prospective relief in the form of an injunction against future rental of heavy equipment by the City for private purposes. When the City changed its policy to prohibit the practice which Cotten complained of, this eviscerated Cotten’s cause of action. Under the new policy, City equipment cannot be used at all unless it is for the benefit of the City. In short, Cotten appears to have obtained precisely the result he requested from the court. The case is moot, and the trial court was correct in dismissing it as such.
Cotten urges, in effect, that the City could well reinstate its rental policy and thus the matter is not moot but capable of repetition. Cotten’s fears, however, are speculative, and this court will not speculate on future eventualities or give advisory opinions regarding such. Wilson v. Pulaski Ass’n of Classroom Teachers, 330 Ark. 298, 954 S.W.2d 221 (1997); Stair v. Phillips, 315 Ark. 429, 867 S.W.2d 453 (1993). Moreover, this court presumes that public officials will act lawfully and sincerely in good faith in carrying out their duties and will not engage in any subterfuge that would give rise to Cotten’s fears. Commercial Printing Co. v. Rush, 261 Ark. 468, 549 S.W.2d 790 (1977); French v. State, 256 Ark. 298, 506 S.W.2d 820 (1974). Accordingly, we do not view this case as one falling within the exception of capable of repetition, yet evading review. Nor do we consider this case to be one of substantial public interest which would cause us to invoke the second exception to our mootness doctrine. This court has previously spoken on the issue of using government equipment for private purposes and concluded that such conduct constitutes an illegal exaction under Ark. Const, art. 16, § 13. See Needham v. Garner, 233 Ark. 1006, 350 S.W.2d 194 (1961).
We turn then to the issue of whether Cotten is entitled to attorney’s fees. We hold that he is not. Arkansas follows the American Rule that attorney’s fees are not chargeable as costs in litigation unless permitted by statute. See Love v. Smackover Sch. Dist., 329 Ark. 4, 946 S.W.2d 676 (1997); City of Hot Springs v. Creviston, 288 Ark. 286, 705 S.W.2d 415 (1986). Our Tax Code does allow recovery of attorney’s fees in illegal-exaction cases when a refund or return of taxpayer moneys is ordered by the court. See Ark. Code Ann. § 26-35-902(a) (Repl. 1997). Yet, there is no similar provision for a suit in which strictly injunctive relief is sought, and this court has specifically held on several occasions that attorney’s fees are not allowed in illegal-exaction cases where no refund is sought. See Hamilton v. Villines, 323 Ark. 492, 915 S.W.2d 271 (1996) (citing Munson v. Abbott, 269 Ark. 441, 602 S.W.2d 649 (1980)); City of Hot Springs v. Creviston, supra. Indeed, in Hamilton v. Villines, supra, we alerted the General Assembly to the fact that it might wish to extend the language in § 26-35-902(a). As of this writing, it has not done so.
As a final point, we note that the trial court dismissed this case without reference to whether it was with or without prejudice. We have held that ordinarily such dismissals are without prejudice. Hollingsworth v. First Nat’l Bank & Trust Co., 311 Ark. 637, 846 S.W.2d 176 (1993); Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984). However, should a plaintiff elect to appeal rather than plead further, the option to plead further is waived in the event of affirmance by the appellate court. Hunt v. Riley, 322 Ark. 353, 909 S.W.2d 329 (1995); Hollingsworth v. First Nat’l Bank & Trust Co., supra. Because we affirm, the dismissal is with prejudice.
Affirmed.
Glaze and Hannah, JJ., concur. | [
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Tom Glaze, Justice.
The court of appeals certified this case to us because it involves the interpretation of Ark. Code Ann. §§ 14-40-601 and -604 (Repl. 1998), concerning a proposed annexation of an area which adjoins the City of Russellville. We accept jurisdiction of this appeal under Ark. Sup. Ct. R. 1-2(b)(6).
In April 1999, Pope County property owners, who owned land adjoining the City of Russellville, petitioned the Pope County Court pursuant to § 14-40-601, seeking to be annexed into Russellville. After holding a hearing on the landowners’ petition, the county court entered an order on June 3, 1999, granting their petition. In June 1999, the City of Dover and Wayne Baker, a landowner in the proposed area to be annexed, filed a timely complaint in the Pope County Circuit Court, as provided under § 14-40-604, seeking to prevent the annexation. Dover alleged there was insufficient proof that all parcels of land within the proposed annex area were proper for annexation. Dover asserted that the petitioners’ proof failed to show that a majority of the landowners of the proposed area had signed the petition or that a majority of the petitioners owned more than one-half of the proposed area, as required by § 14-40-601.
After several months of hearings, the initial circuit judge recused, and the case was then assigned to Circuit Judge Ken Coker, who promptly ordered on December 14, 1999, that a trial be set for April 6, 2000, and that all discovery be completed by March 6, 2000. Judge Coker directed that the parties’ discovery should include naming their expert witnesses, and, by the December 14 order, he informed the parties they would not be granted any continuances for the reason they did not have time to depose a witness. On January 25, 2000, Judge Coker further directed that petitioners answer Dover’s discovery requests on or before February 24, 2000; the judge also denied petitioners’ motion to dismiss and denied the petitioners’ prior request for a protective order.
Dover subsequently asked for a continuance so it could obtain an expert; that request was denied. Dover also sought to depose the petitioners’ agent and attorney, Alex Streett, and the judge took that request under advisement. In March 2000, petitioners amended their original petition, and Dover moved to dismiss this amendment. On April 4, 2000, Dover suggested Judge Coker disqualify, which the judge denied on April 6, 2000 —■ the original trial date. At the same time, the judge denied Dover’s motion for summary judgment, refused Dover’s request to depose attorney Alex Streett, and reset the trial for May 15, 2000.
The trial was held on May 15, and, by letter opinion dated June 19, 2000, Judge Coker entered his decision, finding: (1) the proposed area to be annexed was contiguous to Russellville, as required by § 14-40-604; (2) a majority of the landowners in the proposed annexed area had signed the annexation petition and they owned more than one-half of the area; (3) the petitioners had signed the petition personally or through an agent; (4) Dover failed to show petitioners had no standing; (5) Streett was properly designated as the petitioners’ agent; (6) the proposed area was not unreasonably large, and the area was properly described; (7) and the annexed property met the criteria set out in Town of Houston v. Carden, 332 Ark. 340, 965 S.W.2d 131 (1998).
Dover áppeals the circuit court’s decision and raises ten points for reversal. However, we first discuss this court’s standard of review in this case because it is a significant factor when considering some of Dover’s arguments. First, we point out that Dover’s complaint filed with the circuit court was not an appeal from the Pope County Court, but rather was an independent action attacking the annexation. Proposed Annexation to the Town of Beaver v. Ratliff, 282 Ark. 516, 669 S.W.2d 467 (1984). Such action is tried de novo in circuit court, see Turner v. Wiederkehr Village, 261 Ark. 72, 546 S.W.2d 717 (1977), and this court places a high degree of reliance upon the findings of the trial judge and does not reverse unless those findings are clearly erroneous. Carden, 332 Ark. at 349. Furthermore, this court views the evidence in the light most favorable to the appellee. Id.
In its first point, Dover argues Judge Coker erred in refusing to disqualify himself. More particularly, Dover asserts that, because the judge was a resident of Russellville and a customer of “City Corporation,” he had both an actual bias and an appearance of bias requiring his recusal. Dover explains that City Corporation is a Russellville company that handles water and sewage treatment for Russellville, and Dover says that if the proposed annexation is prevented, Dover would be able to build its own water treatment plant and Russellville would lose revenue received from Dover residents who are now required to use Russellville’s water treatment facility. In sum, Dover suggests that Judge Coker, as a Russellville resident, not only had an interest as a Russellville citizen, but also an economic interest in the outcome of the case. We find no merit in Dover’s argument.
We first note that Dover presented no evidence that the judge had any economic interest or other bias at stake in this litigation. Moreover, it is significant that, at the time the trial court denied the motion to recuse, Dover had been enjoined from constructing the treatment plant it wanted to build. In sum, this case simply involved the propriety of the proposed annexation and had nothing to do with the construction of any sewer treatment facility.
The rule is long established that there is a presumption of impartiality on the part of judges, see Black v. Van Steenwyk, 333 Ark. 629, 970 S.W.2d 280 (1998), and a judge’s decision to recuse is within the trial court’s discretion and will not be reversed absent abuse. Trimble v. State, 336 Ark. 437, 986 S.W.2d 392 (1992). The party seeking recusal must demonstrate any alleged bias. Bradford v. State, 328 Ark. 701, 947 S.W.2d 1 (1997). Unless there is an objective showing of bias, there must be a communication of bias in order to require recusal for implied bias. Lammers v. State, 330 Ark. 324, 955 S.W.2d 489 (1997). Dover simply fails to show bias to warrant Judge Coker’s recusal; therefore, we uphold the judge’s ruling on this point.
In its second point, Dover urges that the trial court erred in denying Dover a continuance. Dover states that, although the judge had set the trial date and discovery deadlines in December 1999, the judge had not yet denied the petitioners’ motion to dismiss Dover’s complaint and did not do so until January 25, 2000. It was not until after the January 25 ruling that Dover began a search for expert witnesses. Dover reasoned that it did not wish to incur the unnecessary expenditures of hiring an expert if its complaint would be dismissed; therefore, Dover delayed its search for expert witnesses. Dover submits that the only expert it contacted who could testify said that there was insufficient time to prepare for the April 6 trial. When Dover requested a continuance on February 4, 2000, the trial judge adhered to his earlier orders and, on February 24, denied Dover’s continuance request.
The rule is settled that the granting or denial of a motion for continuance is within the sound discretion of the trial court, and that court’s decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001). An appellant must show prejudice from the denial of a continuance, and when a motion is based on a lack of time to prepare, we will consider the totality of the circumstances; the burden of showing prejudice is on the appellant. Id. Finally, the court has also held that a lack of diligence alone is sufficient cause to deny a continuance. See Jenkins v. Int’l Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994).
Here, the record reflects Dover was simply not diligent in engaging an expert needed to prove its case. Dover filed this case in June 1999, and had the burden to prove its allegations. Judge Coker took charge of this case in December 1999, and was quite specific in moving the case along by setting an April 6, 2000, trial date and establishing a discovery deadline, including the disclosure of expert witnesses so any depositions could be conducted. Dover knew it had the burden of going forward with proof, yet it delayed engaging an expert until it learned the petitioners’ dismissal motion would be denied. Such delaying tactics showed a lack of diligence on Dover’s part, and in these circumstances, we cannot say the trial judge abused his discretion in denying Dover’s request for continuance.
In its third point, Dover submits that, under § 14-40-601, the petitioners were required to apply in writing to the county court and name the persons authorized to act on their behalf. That statute reads, in pertinent part, as follows:
Whenever a majority of the real estate owners of any part of a county contiguous to and adjoining any city or incorporated town shall desire to be annexed to the city or town, they may apply, by petition in writing, to the county court of the county in which the city or town is situated and shall name the persons authorized to act on behalf of the petitioners.
Ark. Code Ann. § 14-40-610(a) (Repl. 1998) (emphasis added).
Dover argues the petitioners did not comply with the statute. Dover points to the testimony of a number of the persons who signed the annexation petition, stating these petitioners indicated they had not been told they were required to appoint someone to act on their behalf and did not know they were appointing an agent. However, most of these same witnesses also testified that they were aware someone was to be authorized to act in their behalf, and many of these witnesses specifically stated they understood that agent was Alex Streett. The petition itself specifically acknowledged that the landowners signing the petition named Streett as their attorney and representative. The trial judge heard all of the evidence and testimony and found the petitioners had named Streett their agent as required by § 14-40-601. We cannot say the judge’s finding was clearly erroneous.
Dover next argues the trial judge erroneously denied Dover the right to depose Alex Streett and to call him as a witness. As set out in point three above, Dover argues there were some landowners who claimed they had no idea Alex Streett was their agent or that they had appointed him as an agent. Dover urges it had the right to examine Streett concerning the inconsistencies in the testimonies on this point.
Our Model Rules of Professional Conduct explicitly provide that an attorney “shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness.” See Model Rules of Professional Conduct 3.7; see also Int’l Resource Ventures, Inc. v. Diamond Mining Co. of America, 326 Ark. 765, 934 S.W.2d 218 (1996). Given this strong proscription against attorneys acting as witnesses, and given the wide latitude afforded to trial courts in ruling on discovery matters, see Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001) (a trial court’s decision on discovery issues will not be reversed absent an abuse of discretion), it cannot be said that the trial judge here abused his discretion. Dover took every opportunity in examining the petitioners/landowners to develop any inconsistencies it believed occurred regarding whether they knew Streett or someone would act in their behalf. In its argument three above, Dover referred to nineteen petitioners’ testimonies to make its point. Dover made no attempt to offer any testimony Streett would render that would differ from the considerable evidence it elicited from the landowners. It is not reversible error to exclude evidence which is merely cumulative. See Rule 403 of the Arkansas Rules of Evidence.
In Dover’s fifth point for reversal, it urged that the petitioners failed to prove that a majority of the landowners petitioned the county court for annexation as required by § 14-40-601. In making this argument, Dover contends the petitioners’ evidence before the Pope County Court fell short. As we fully discussed earlier in this opinion, Dover filed a complaint in circuit court to prevent the petitioners’ annexation, and it is this court’s responsibility on appeal to decide whether the circuit court’s findings of fact are clearly erroneous. See City of West Memphis v. City of Marion, 332 Ark. 421, 965 S.W.2d 776 (1998). Because our review is one from the circuit court, we are unable to address Dover’s argument here, since it erroneously requires our review of the county court proceeding.
In argument six, Dover claims the trial judge erred by allowing the petitioners to amend in circuit court the annexation petition it previously filed in the Pope County Court. In the circuit court proceeding, Dover raised questions concerning whether a majority of the landowners in the proposed area had actually signed the original petition for annexation. For example, there were spouses listed as owning property, but only one spouse signed the petition for both. After Dover questioned the validity of the petitioners signing the petition in a representative capacity, petitioners attached affidavits from the landowners indicating they had the authority to sign as agents for co-owners or owners. In addition, the persons who signed those affidavits also testified live at trial or by deposition that they had such authority.
Dover’s complaint here is based on its contention that the annexation laws in §§ 14-60-601 to -606 (Repl. 1998) do not provide petitioners the authority to amend their original petition to correct any deficiencies later found therein. Dover continues its argument, stating the trial judge essentially turned the proceeding into a trial de novo with the petitioners being given the opportunity to correct each and every deficiency discovered and pointed out by Dover.
In discussing this court’s standard of review above, we pointed out that the circuit court’s proceeding triggered by Dover’s complaint to prevent petitioners’ annexation is, indeed, a de novo one. This being so, we conclude the trial judge was correct in considering the additional evidence offered by petitioners,- and again, we are unable to hold he was clearly erroneous in allowing petitioners the opportunity to rebut the questions raised by Dover concerning the validity of the landowners’ signing for their respective co-owners.
Dover next argues the petitioners failed to prove in circuit court that a majority of the landowners petitioned the county court for annexation. Again, the way Dover frames its argument is wrong. The burden of proof in an action to prevent annexation is placed on the remonstrants — here, Dover — to prove the area should not be annexed. Carden, 332 Ark. 346-347.
In support of its argument, Dover relies on the testimony of land surveyor, Danny Hale, wherein Hale said that he relied on deeds given to him to determine who the landowners were in the proposed annexed area, and that he made no independent verification of that information. However, Dover ignores Hale’s further testimony that basing his determination of the percentage of property owners who signed the petition on the information received from deeds was “a normal procedure for [his] line of work.” Hale further averred that he had no question in his mind that the required number of landowners signing the petition and that the total -acreage owned by these landowners in the affected area met the requirements in § 14-40-601. Further, Dover did nothing to show, as it was required to do, that at least fifty percent of the landowners in the proposed annexed area did not execute the petition. Instead, Dover largely attempts to attack Hale’s credibility and the manner in which Hale obtained his information when opining that the landowners had met the statutory requirements in § 14-40-601. Of course, the trial judge heard this testimony and other evidence, and we believe there was sufficient evidence to sustain the trial judge’s ruling on this point.
Dover’s eighth point is similar to point six above. Here, it argues the trial judge erred in holding there were sixty-seven landowners, of whom forty (59%) signed the petition personally or through agents. Dover contends that nine of the forty landowners did not personally sign the petition, and with those nine excluded, less than the required majority of landowner signatures were obtained.
Once again, our review of the record reflects that only one of the persons Dover mentions in its argument did not testify regarding her spouse’s authority to sign the annexation petition, and this reduction does not make the tally less than the required fifty percent. Moreover, while Dover suggests the statutory law does not allow a landowner’s name to be signed by an agent such as an authorized spouse, it offers no citation of authority or convincing argument to support its view.
Also similar to prior arguments, Dover next submits trial error occurred when the trial judge found the petitioners owned a majority of the total acreage to be annexed. Dover lists thirteen of the landowners’ tracts and pointed out that not all of the listed owners signed the petition. It claims these thirteen tracts comprised 194.96 acres and, because the proposed area totaled only 287.92 acres, the required majority was not achieved.
The trial court found that the total acreage owned by the petitioners in the area to be annexed was 233.3 acres, or 81% of the land. Our review of the record reflects affidavits, testimony, live or by deposition, and other evidence showing all but one of the thirteen tract owners had authorized an agent to sign the petition. One owner of a .95 acre tract could not recall “why he didn’t have his wife sign,” but subtracting that acreage still leaves a total of 232.35 acres, or 80.61% of the area to be annexed.
Finally, Dover argues that the area to be annexed was not contiguous to the City of Russellville because the strip of land connecting the annexation area to the city was owned by Wayne Baker, who was originally a party to this action, and who did not sign the petition. Dover contends that § 14-40-601 requires that one or more of the petitioners must own property that is contiguous to the city limits of the city into which the petitioners wish to be annexed. Because Baker did not join the petition, Dover urges the petition was fatally defective. However, no such requirement exists in the statute winch simply states that “the majority of the real estate owners of any part of a county contiguous to and adjoining any city or incorporated town . . . may apply” for annexation. See § 14-40-601 (a)(emphasis added). In other words, the statute contains no language requiring the contiguous portion of the proposed annexed acreage be owned by one of the petitioners; thus, we decline to give the statute the strained interpretation sought by Dover. Accordingly, we uphold the trial judge’s ruling on this point.
For the foregoing reasons, we uphold the circuit court on all its rulings and decisions and affirm.
Baker later opted to be dismissed as a party in this appeal, so the City of Dover is mentioned throughout this opinion as the party challenging the annexation.
This court later dissolved the injunction, see City of Dover v. Barton, 342 Ark. 521, 29 S.W.3d 698 (2000), but the injunction was in place at the time of the April 6 hearing.
Counsel offer different views concerning whether petitioners had previously suggested they may not have an expert — an assertion petitioners steadfastly deny. Those differences are of no relevance to our decision; however, we do note that the transcript reflects that, in January 2000, Dover acknowledged petitioners had given Dover notice that they would call three experts to testify. | [
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Per Curiam.
Petitioner Vera Arnold retained Attorney Patrick J. Benca on July 31, 2001, to represent her in a hearing in Pulaski County Circuit Court, Fifth Division. The trial court held this evidentiary hearing on July 31, 2001, and the court entered Findings of Fact and Conclusions of Law on August 3, 2001.
On August 16, 2001, Attorney Benca filed with this court a motion to supplement the record, and on that same day, the trial court granted Benca’s motion to be relieved as counsel as he had fulfilled the duties for which he had contracted with Arnold. However, because Arnold’s motion to supplement the record was pending in this court, the Arkansas Supreme Court Clerk contacted Benca on August 21, 2001, advising him the he must enter his appearance here in order for the court to entertain Arnold’s motion to supplement the record. On August 27, 2001, Benca filed a motion to enter his appearance for the limited purpose of handling Arnold’s motion to supplement the record.
We hereby grant Attorney Benca’s motion to enter his appearance while this court considers Arnold’s motion to supplement the record and until the court has been provided the status of this appeal and the name of who, if anyone, will represent Arnold in this continuing matter.
Motion granted. | [
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Per Curiam.
Charles Anthony Martin seeks permission to file a belated appeal with this court. On October 20, 2000,
appellant entered a conditional plea of guilty to a charge of manufacturing methamphetamine after the trial court denied his motion to suppress various items of evidence. Martin’s plea agreement specifically provided, “This is a conditional plea under Ark. R. Cr. P. 24.3, and may be withdrawn upon successful appeal.” The trial court sentenced him to ten years in prison. After entering his plea, Martin advised his attorney that he wished to appeal the court’s ruling on his suppression motion. According to Martin’s affidavit accompanying the present motion, his attorney, Dale Finley, assured Martin that he would file a notice of appeal on Martin’s behalf; however, by June of 2001, Finley had not yet filed the notice. At that time, Martin verified with the Cleburne County Circuit Court that the notice of appeal had not been filed. When Martin called Finley to advise him that the record with the clerk’s office did not contain a notice of appeal, Martin further averred that Finley had assured Martin that the notice of appeal was filed or that the notice was on its way to be filed.
On October 2, 2001, Martin, through another attorney, Patrick J. Benca, filed the present application for belated appeal. The partial transcript filed the same date does not reflect that Finley ever filed a notice of appeal. Under Ark. R. App. P. — Crim. 16, trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the supreme court, unless permitted by the trial court or the supreme court to withdraw in the interest of justice or for other sufficient cause. See also Green v. State, 216 Ark. 313, 634 S.W.2d 140 (1982). Further, we have held that the failure of counsel to perfect an appeal in a criminal case where the defendant desires an appeal amounts to a denial of the defendant’s right to effective assistance of counsel and constitutes good cause for granting a belated appeal under Ark. R. App. P. — Crim. 2(e). See Woodruff v. State, 323 Ark. 448, 916 S.W.2d 104 (1996); Blakely v. State, 279 Ark. 141, 649 S.W.2d 187 (1983). To date, Finley has not filed any response to Martin’s allegations.
We remand this matter to the trial court for a hearing to settle the record in order to determine whether Martin had requested Finley to file a notice of appeal. The parties have thirty days from the date of this per curiam to settle these issues. | [
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Ray Thornton, Justice.
The Arkansas State Racing Commission (“the Commission”), appeals the January 11, 2001, decision of the Crittenden County Circuit Court reversing the Commission’s order that affirmed the order of the South-land Greyhound Park Board of Judges (“the Board”) redistributing the winner’s purse from the eleventh race at Southland Greyhound Park (“Southland”) on May 31, 1997, because of a violation of the rules prohibiting drugs. The Commission contends that the circuit court’s decision should be reversed because the Commission’s decision was not arbitrary, capricious, or otherwise characterized by an abuse of discretion and is supported by substantial evidence. We agree and reverse.
The facts of this case are not in dispute. Ward is the owner of a greyhound dog, Royal Duke, that finished first in the eleventh race at Southland on Saturday, May 31, 1997. Royal Duke’s urine sample, which was taken following the race, was found to contain Dimethyl Sulfoxide (“DMSO”), an anti-inflammatory drug. The trainer admitted to applying DMSO to Royal Duke on the Wednesday prior to the race.
Rules 1226, 1230, and 1233 of the Rules and Regulations Governing Greyhound Racing in Arkansas (“the Rules”) prohibit the administration of any drug prior to a race and provide for a fine to be assessed against the trainer and a forfeiture of any purse claimed by the owner of a dog testing positive for any prohibited drug. Pursuant to these Rules, the Board, in Ruling #16 of 1997, fined the trainer $25.00 and ordered the purse of $11,000.00 to be redistributed to the owner of the second place dog.
Ward appealed the action of the Board to the Commission, arguing that the redistribution of the purse violated the Eighth Amendment to the Constitution of the United States, as well as its counterpart in the Arkansas Constitution, and that it deprived him of due process. Ward also contended that the Rules are arbitrary and irrational in their operation because the penalty only applies when the offending dog wins the race; the penalty to the owner is disproportionate to the trainer’s fine; the wagering public is not protected because the public collects wagers as though the offending dog had won; DMSO is neither a performance enhancing nor performance retarding drug; and DMSO does not get reported all the time, even though the Rules prohibit the presence of any amount of DMSO.
On November 20, 1997, the Commission conducted a hearing. On January 31, 1998, the Commission entered its findings of fact and conclusions of law and its order denying Ward’s appeal and ordering the purse to be redistributed in accordance with the Commission’s Rules.
Ward filed a petition to review the order of the Commission with the Crittenden County Circuit Court, pursuant to Ark. Code Ann. § 25-15-212(h) (Repl. 1996). The circuit court held a hearing and, on December 29, 2000, entered its- order finding that the Commission Order of January 31, 1998, was not supported by substantial evidence, and was an abuse of discretion and was arbitrary and capricious. It is from this order that the Commission brings this appeal. We note that this case has been certified to us. We accepted jurisdiction pursuant to Ark. Sup. Ct. R. 1-2(a)(1) & (b)(3) because of the constitutional questions argued by Ward.
Standard of Review
We have outlined our standard of review of the decisions of administrative agencies on numerous occasions. In Arkansas State Police Comm’n v. Smith, 338 Ark. 354, 994 S.W.2d 456 (1999), we stated:
The standard of review in this area of the law is well-developed. The appellate court’s review is directed not toward the circuit court, but toward the decision of the agency. That is so because administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. McQuay v. Arkansas State Bd. of Architects, 337 Ark. 339, 989 S.W.2d 499 (1999); Social Work Licensing Bd. v. Moncebaiz, 332 Ark. 67, 962 S.W.2d 797 (1998); Files v. Arkansas State Highway and Transp. Dep’t, 325 Ark. 291, 925 S.W.2d 404 (1996). Our review of administrative decisions is limited in scope. Such decisions will be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. McQuay, supra; In re Sugarloaf Mining Co., 310 Ark. 772, 840 S.W.2d 172 (1992).
These standards are consistent with the provisions of the Administrative Procedure Act, Ark. Code Ann. § 25-15-201 — 25-15-214 (Repl. 1996), which requires that the scope of appellate review under the Act be limited. According to the Act, it is not the role of the circuit courts or the appellate courts to conduct a de novo review of the record; rather, review is limited to ascertaining whether there is substantial evidence to support the agency’s decision or whether the agency’s decision runs afoul of one of the other criteria set out in section 25-15-212(h). Arkansas Bd. of Exam’rs v. Carlson, 334 Ark. 614, 976 S.W.2d 934 (1998). We review the entire record in making this determination. Id. We also note that in reviewing the record, the evidence is given its strongest probative force in favor of the agency’s ruling. Arkansas Health Servs. Agency v. Desiderata, 331 Ark. 144, 958 S.W.2d 7 (1998).
Smith, supra; see also Jackson, supra. We have also held that between two fairly conflicting views, even if the reviewing court might have made a different choice, the board’s choice must not be displaced. Jackson, supra (citing Northwest Sau & Loan Ass’n v. Fayetteville Sav. & Loan Ass’n, 262 Ark. 840, 562 S.W.2d 49 (1978)).
The relevant section of the Arkansas Administrative Procedure Act provides:
(h) The court may affirm the decision of the agency or remand the case for further proceedings. It may reverse or modify the decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency’s statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.
Ark. Code Ann. § 25-15-212(h).
For its sole point on appeal, the Commission argues that the circuit court erred in finding that the Commission’s decision was arbitrary, capricious, or otherwise characterized by an abuse of discretion and was not supported by substantial evidence. The Commission argues that its decision was not arbitrary, capricious, or otherwise characterized by an abuse of discretion and was supported by substantial evidence because it merely applied the Rules to the undisputed facts in making its conclusion to redistribute the purse.
In response to the Commission’s arguments, Ward contends that the circuit court correctly found that the Commission’s order redistributing the purse was arbitrary and capricious and not supported by substantial evidence because the Commission did not conduct a de novo review of the case, but merely “rubber stamped” the Board’s ruling. Ward further argues that the Commissioners lacked the expertise regarding racing to make the decision. Ward also contends that the Rules themselves operate in an arbitrary and capricious manner. Specifically, Ward argues that it is arbitrary and capricious that the presence of a substance that neither enhances nor retards performance results in the loss of a purse, and it is arbitrary and capricious that only winning owners are to be punished. Finally, Ward seeks to contest the Commission’s order redistributing the purse as a violation of both the United States and Arkansas Constitutions.
The pertinent Rules are Rules 1226, 1230, and 1233, which are published in the 1980 edition of the Rules. These Rules are contained in the section entitled “Corrupt, Fraudulent and Prohibited Practices.” Rule 1226 provides:
Except for lawful administration of medication, no person shall administer, or permit to be administered, any drug in any manner whatsoever, internally or externally, to any greyhound entered or to be entered in a race, prior to the race.
Rules and Regulations Governing Greyhound Racing in Arkansas, Rule 1226 (1980) (emphasis added).
Rule 1230 provides:
Any trainer, attendant, owner, or other person who shall be adjudged guilty of any participation in or knowledge of the administration of any drug to any entry in a race or otherwise unlawfully tampering with greyhounds for the purpose of increasing or retarding the speed of such greyhound shall for the first and second offenses be punished to such extent as the Board of Judges rule, and for the third offense may be thereafter ruled off and denied a license for fife. It is provided, however, that the owner of a greyhound to which a drug has been unlawfully administered, or which has been unlawfully tampered with, or any entry of which such greyhound is a part, shall be denied any part of the purse and the purse shall be distributed as in the case of a disqualification. If said purse is paid before disqualification, then the proper owner entitled to said purse may recover from those who had received such purse. In the event that a greyhound establishes a track record in a race and it later develops that the chemical analysis of any sample taken from such greyhound indicates the presence of a narcotic, stimulant, depressant or local anesthetic, then such track record shall be null and void.
Rules and Regulations Governing Greyhound Racing in Arkansas, Rule 1230 (1980) (emphasis added).
Rule 1233 provides:
The Trainer shall be responsible for and be the absolute insurer of the condition of an entry he enters regardless of the acts of third parties. Should the chemical or other analysis of saliva, urine or blood specimens prove positive, showing the presence of any narcotic, stimulant, depressant, chemical or drug of any kind or description, the trainer may, in the discretion of the Board of Judges, subject to appeal to the Commission, be fined, suspended or ruled off the track. In addition, any other person shown to have had the care or attendance of the entry shall not participate in the purse distribution.
Rules and Regulations Governing Greyhound Racing in Arkansas, Rule 1233 (1980) (emphasis added).
Substantial Evidence
The Commission argues that the circuit court erred in concluding that its decision to redistribute the purse was not supported by substantial evidence. The Commission argues that its decision was supported by substantial evidence because it was merely applying the Rules to the undisputed facts. We agree.
. [4] Substantial evidence has been defined as valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion, and force the mind to pass beyond conjecture. Smith, supra (citing McQuay, supra; Bohannon v. Arkansas Bd. of Nursing, 320 Ark. 169, 895 S.W.2d 923 (1995)). The challenging party has the burden of proving an absence of substantial evidence. Smith, supra. To determine whether a decision is supported by substantial evidence, the record is reviewed to ascertain if the decision is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Arkansas State Highway & Transp. Dep’t v. Kidder, 326 Ark. 595, 933 S.W.2d 794 (1996). When reviewing the evidence, the court gives it its strongest probative force in favor of the agency. Id. The issue is not whether the evidence supports a contrary finding, but whether it supports the finding that was made. Id. It is the prerogative of the agency to believe or disbelieve any witness and to decide what weight to accord the evidence. Smith, supra (citing McQuay, supra). We must affirm the agency’s decision if there is substantial evidence to support it. Smith, supra (citing Partlow v. Arkansas State Police Comm’n, 271 Ark. 351, 609 S.W.2d 23 (1980).
In the present case, there was substantial evidence to support the d'ecision of the Commission to redistribute the purse. It was undisputed that the trainer had applied DMSO to Royal Duke on the Wednesday prior to the Saturday race. It was also undisputed that a urine sample taken from Royal Duke after the Saturday race tested positive for DMSO through a qualitative test. Under Rule 1226, DMSO is a prohibited drug because, according to that rule, “no person shall administer, or permit to be administered, any drug in any manner whatsoever, internally or externally, to any greyhound entered or to be entered in a race, prior to the race.” Rules and Regulations Governing Greyhound Racing in Arkansas, Rule 1226 (1980) (emphasis added). Moreover, under the RCI Guidelines and Model Rules, the applicability of which was not disputed by either party and which was admitted into evidence, DMSO is a Class 5 drug, for which the recommended penalty is zero to fifteen days suspension, with a possible loss of purse and/or fine. Finally, there was no contention that DMSO was not an illegal drug. Consequently, under Rules 1230 and 1233, loss of the purse is the penalty to the owner for administration of any drug prior to the race. The Commission’s findings of facts and conclusions of law reflected the application of these undisputed facts to the Rules.
In reversing the Commission’s decision to redistribute the purse, the circuit court relied on several factors, including the trainer’s stipulated testimony that he administered DMSO four days before the race, testimony that DMSO can be found in the urine twenty-four to forty-eight hours after administration, testimony that DMSO is not reported as a positive unless it is over thirty-six micrograms per milliliter, and testimony that indicated that DMSO does not necessarily improve the performance of the dog. However, the Commission’s Rules strictly prohibit the administration of any drugs prior to a race. In addition, the Commission’s Rules do not specify a time limit for the safe administration of such drugs before a race. Finally, the Commission’s Rules provide a penalty to the owner under Rule 1230 and Rule 1233, regardless of whether the use of a drug increases or retards the performance of the dog.
We have recently held that between two fairly conflicting views, even if the reviewing court might have made a different choice, the board’s choice must not be displaced. Jackson, supra. It was not within the purview of the circuit court to substitute its judgment for that of the Commission. Moreover, we have held that the Commission is expressly authorized to “take such other action, not inconsistent with law, as it may deem necessary or desirable to supervise and regulate, and to effectively control in the public interest, horse racing in the State of Arkansas.” Jackson, supra (quoting Ark. Code Ann. § 23-110-204(a)(6) (Repl. 1999) (emphasis added)).
Because the Commission applied the undisputed facts to its Rules, we hold that the Commission’s decision to redistribute the purse is supported by relevant evidence that a reasonable mind might accept as adequate to support its conclusion. Accordingly, we reverse the decision of the circuit court on this point.
Arbitrary and Capricious
The Commission also argues that the circuit court erred in concluding that its decision to redistribute the purse was arbitrary and capricious. We agree.
We outlined our rule regarding the determination of whether an administrative action is arbitrary and capricious in Smith, supra. We stated:
Administrative action may be regarded as arbitrary and capricious where it is not supportable on any rational basis. Partlow, supra. To have an administrative action set aside as arbitrary and capricious, the party challenging the action must prove that it was willful and unreasoning action, without consideration and with a disregard of the facts or circumstances of the case. Partlow, supra. We have stated that the requirement that administrative action not be arbitrary and capricious is less demanding than the requirement that it be supported by substantial evidence. Beverly Enter.-Ark., Inc. v. Arkansas Health Servs., 308 Ark. 221, 824 S.W.2d 363 (1992). An action is not arbitrary and capricious simply because the reviewing court would act differently. McQuay, supra. Finally, we have held that once substantial evidence is found, it automatically follows that a decision cannot be classified as unreasonable or arbitrary. Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992).
Smith, supra.
In the present case, we have concluded that there was substantial evidence to support the Commission’s decision to redistribute the purse. Therefore, under our case law, which states that a decision cannot be classified as unreasonable or arbitrary once substantial evidence is found, the Commission’s decision could not have been arbitrary and capricious. See Smith, supra (citing Wright, supra). Moreover, the Commission’s decision was not arbitrary and capricious because there was no proof that the Commission’s action in redistributing the purse was willful and unreasoning action, without consideration and with a disregard of the facts or circumstances of the case. Rather, the Commission set forth both the findings of fact and conclusions of law supporting its decision to redistribute due to the positive drug test.
Ward argues that the Commission’s order was arbitrary and capricious because it did not conduct a de novo review of the Board’s decision. As support for this argument, Ward relies on the statements of two of the commissioners, Mr. Roussel and Mr. Lorence, who each indicated a hesitation to overrule the Board’s decision during the Commission hearing. However, while the statement by the two commissioners reflected some misunderstanding as to the standard of review the Commission was to apply during the hearing, that misunderstanding was resolved when the Commission’s counsel informed the Commission that it was required to apply a de novo standard of review:
Let me explain, the Commission is to try this case de novo. What you need to do is base your decision on what you heard today, and just because the judges rules one way, that shouldn’t be a factor in your decision.
In reaching its conclusion, the Commission considered the undisputed facts in conjunction with its rules, and, in doing so, was aware of its duty to apply a de novo standard of review to the Board’s decision to redistribute the purse. Therefore, we cannot say that the Commission failed to apply a de novo standard of review. Accordingly, we reverse the decision of the circuit court on this point as well.
Reversed and remanded to reinstate Commission’s order.
In response, Ward argues that the Commission’s decision to redistribute tire purse violated the Eighth Amendment to both the Constitution of the United States and the Arkansas Constitution, and that it deprived him of due process. However, neither the Commission nor the circuit court issued a ruling on these arguments. It is well settled that to preserve arguments for appeal, even constitutional ones, the appellant must obtain a ruling below. E.g., Barclay v. First Paris Holding Co., 344 Ark. 711, 42 S.W.3d 496 (2001) (citing Wilson v. Neal, 332 Ark. 148, 964 S.W.2d 199 (1998)). Accordingly, we reject this argument without reaching the merits. Nevertheless, while the constitutional argument has not been preserved for appeal in the present case, we note that we have recently addressed the question whether the redistribution of a horse racing purse because of the possession of a prohibited electrical device in violation of racing rules deprived the owner of his constitutional rights and determined that we could not conclude that the owner’s constitutional rights were violated. See Jackson v. Arkansas Racing Comm’n, 343 Ark. 307, 34 S.W.3d 740 (2001).
DMSO is a Class 5 drug under the Uniform Classification Guidelines for Foreign Substances and Recommended Penalties and Model Rules, adopted by the Association of Racing Commissioners International (“the RCI Guidelines and Model Rules”), which were revised in October of 1996.
The Commission’s Findings of Fact and Conclusions of Law provide:
FINDINGS OF FACT OF THE ARKANSAS RACING COMMISSION
Based on the testimony and evidence presented, the Commission makes the following findings of fact:
1. Royal Duke, owned by Wayne Ward, Inc., won the 11th race at Southland Greyhound Park on May 31, 1997. The winner’s share of the purse was $11,000.
2. Subsequent to the race, the Commission took a urine sample from Royal Duke, which tested positive for DMSO. DMSO is a compound used as a topical anti-inflammatory which easily penetrates the skin to help reduce swelling.
3. Mr. Ward admitted that his trainer used DMSO in spray bottles, and did not contest the fact that DMSO was found in the urine sample of Royal Duke.
4. Mr. Ward argued that the penalty imposed, the forfeiture of the entire purse of$ll,000, was too severe since, according to Mr. Ward, DMSO does not affect the performance of a dog.
5. Under the Uniform Classification Guidelines for Foreign Substances and Recommended Penalties and Model Rule, adopted by the Association of Racing Commissioners International, Inc., DMSO is a Class 5 drug.
6. A violation for the presence of a Class 5 drug has a recommended penalty of 0 - 15 days suspension with a possible loss of purse and/or fine under the Model Rules.
CONCLUSIONS OF LAW OF THE ARKANSAS RACING COMMISSION
Based on the testimony and evidence presented, the Commission makes the following conclusions of law:
1. DMSO is a prohibited drug under the Commission’s rules.
2. Under the Commission’s rules, if a dog tests positive for any prohibited drug, the owner forfeits the purse.
3. The Commission does not believe that forfeiture of the purse is too severe of a penalty in this case, and notes that it is within the range of penalties recommended by the Model Rules adopted by the Association of Racing Commissioners International, Inc. | [
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Per Curiam.
Appellant, Eric Z. Grillot, was convicted of first-degree murder in Van Burén Circuit Court, and a judgment and commitment order was filed on August 30, 2000. On November 17, 2000, Ralph J. Blagg, counsel for appellant, filed a notice of appeal and designated the entire record. On January 16, 2001, the trial court extended the filing of the transcript until June 1, 2001. The transcript was not filed by that deadline, and on July 17, 2001, Mr. Blagg filed a motion to withdraw as counsel, stating that subsequent to the deadline for filing the transcript, appellant retained other counsel. Mr. Blagg has failed to file a motion for rule on the clerk and does not accept responsibility for the untimely filing.
We have held that we will grant a motion for rule on clerk when the attorney admits that the record was not timely filed due to an error on his part. See, e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Under these circumstances, Mr. Blagg should have filed a motion for rule on the clerk, accepting full responsibility for not having timely filed the transcript. Appellant’s motion to withdraw as counsel will not be granted until Mr. Blagg’s motion for rule on the clerk has been granted.
Mr. Blagg shall file a motion and affidavit in which he accepts responsibility for not timely filing the transcript -within thirty days from the date of this per curiam order, and upon that filing, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.
At that time, we will consider the motion for entry of appearance by appellant’s newly retained counsel, and Mr. Blagg’s motion to withdraw as counsel. We defer action on those motions, pending Mr. Blagg’s compliance with this order. | [
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PER CURIAM.
Appellants Michael and Lindsey Spurlock filed a motion for rule on clerk seeking an order of this court directing the Arkansas Supreme Court Clerk to accept their record for filing. Appellants tendered the record on February 14, 2008, under an extension of time granted by the circuit court on December 7, 2007. The clerk refused to file the record because the extension order did not comply with Ark. R. App. P.-Civ. 5(b)(1). Appellants subsequently filed the present motion.
Rule 5(b)(1) applies to both civil and criminal cases for the determination of the timeliness of a record on appeal. See Harrison v. State, 369 Ark. 518, 256 S.W.3d 482 (2007) (per curiam). Rule 5(b)(1) provides:
(b) Extension of time.
(1) If any party has designated stenographically reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period prescribed by subdivision (a) of this rule or a prior extension order, may extend the time for filing the record only if it makes the following findings:
(A) The appellant has filed a motion explaining the reasons for the requested extension and served the motion on all counsel of record;
(B) The time to file the record on appeal has not yet expired;
(C) All parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing;
(D) The appellant, in compliance with Rule 6(b), has timely ordered the stenographically reported material from the court reporter and made any financial arrangements required for its preparation; and
(E) An extension of time is necessary for the court reporter to include the stenographically reported material in the record on appeal.
This court has made it very clear that we expect strict compliance with the requirements of Rule 5(b) and that we do not view the granting of an extension as a mere formality. See Harrison, 369 Ark. 518, 256 S.W.3d 482; Hairgrove v. Oden, 365 Ark. 53, 223 S.W.3d 827 (2006) (per curiam). Before a trial court may enter an order of extension: (1) the appellant must request the extension; (2) notice must be given to the appellee; (3) the parties must have the opportunity to be heard; and (4) the trial court must make findings to support an extension. See id.
We have also explained that upon remand for compliance with Rule 5(b)(1), the circuit court shall determine whether the rule was complied with at the time the original motion for extension of time was filed and granted. See Lancaster v. Carter, 372 Ark. 181, 271 S.W.3d 522 (2008) (per curiam). We have further stated that the circuit court should not permit the parties the opportunity to correct any deficiencies, but instead should make the findings required by the rule as if they were being made at the time of the original motion. Id. Should the requirements not have been met at the time of the initial motion for extension and order, the circuit court’s order upon remand should so reflect and be returned to this court. Id.
Here, the requirements of Rule 5 were not met as the request for extension was not properly brought by Appellants. Thus, the order of extension entered by the circuit court was void. Therefore, the motion for rule on clerk is denied. This case shall be stricken from the docket, the jurisdiction of the court terminated, and the filing fee forfeited. See Ark. Sup. Ct. R. 2-2(d).
Motion denied.
The record reflects that the court reporter filed a “motion” requesting an extension of time for filing the record and transcript and stated therein that the circuit court, Appellants, and Appellee had been notified of the request. | [
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Per Curiam.
Appellant Joseph Rounsaville was found guilty of rape and sentenced as a habitual offender to a term of life imprisonment on September 24, 2007. On October 11, 2007, Appellant filed a pro se motion for appointment of counsel for posttrial proceedings and for representation at a new trial, as well as a pro se motion for new trial based upon his claims of ineffectiveness of his current counsel. The Pulaski County Circuit Court denied these motions on October 31, 2007. That same day Appellant’s counsel, Richard L. Hughes, filed a motion to be relieved as counsel with the circuit court asserting that Appellant’s challenge of his effectiveness has presented a conflict of interest in fact for counsel.
On November 26, 2007, Appellant filed a pro se notice of appeal from the October 31 order denying his motion for new trial. On November 28, 2007, Hughes, acting as counsel for Appellant, filed a notice of appeal from the September 24 judgment and commitment order as well as the October 31 order. That same day, Appellant refiled his pro se notice of appeal, which included an affidavit of indigency in accordance with Ark. Sup. Ct. R. 6-6. The record was lodged with this court and briefing was commenced on February 15, 2008. Hughes has filed the present motion to be relieved as counsel on the basis that he has a conflict of interest as Appellant has clearly challenged his competency by filing the pro se motions such that the attorney-client trust has been undermined. Citing Townsend v. State, 350 Ark. 129, 85 S.W.3d 526 (2002), Hughes claims that this court should appoint different counsel for defendant or take adequate steps to ascertain whether the risk of a conflict of interest is too remote to warrant different counsel. Additionally, Hughes claims that Appellant is entitled to separate counsel to pursue his ineffective-assistance claim.
Under Ark. R. App. P.-Crim. 16, Hughes is required to represent Appellant until he has been relieved as counsel by the trial court or by a state appellate court. Specifically, Rule 16(a) provides as follows:
(a) Trial counsel, whether retained or court-appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court or Arkansas Court of Appeals, unless permitted by the trial court or the appellate court to withdraw in the interest of justice or for other sufficient cause. After the notice of appeal of a judgment of conviction has been filed, the appellate court shall have exclusive jurisdiction to relieve counsel and appoint new counsel.
In Townsend, 350 Ark. 129, 85 S.W.3d 526, the issue on direct appeal was whether the circuit court erred in denying trial counsel’s motion to withdraw. There, we explained that when an asserted conflict of interest is of the defendant’s own making, “we must determine whether or not Townsend has demonstrated prejudice from the trial court’s refusal to permit [counsel] to withdraw.” Id. at 135, 85 S.W.3d at 529. Although the merits of Appellant’s appeal are not at issue in this motion, it is clear from the record and the proceedings in this case that a main issue on appeal will be Appellant’s claim of Hughes’s ineffective assistance at trial. Consequently, as Appellant’s attorney, Hughes would be required to argue against his own effectiveness. We feel that it is unrealistic to expect trial counsel, who is also appellate counsel, to call into question his own competence such that there is a sufficient reason for Hughes to be relieved as counsel for Appellant.
Based upon the foregoing, we grant the motion to be relieved as counsel. But cf. Harden v. State, 367 Ark. 364, 240 S.W.3d 103 (2006) (per curiam) (denying motion to be relieved as counsel on the basis of a conflict of interest when Appellant has appealed his judgment of conviction on issues other than ineffective assistance of counsel). Attorney Justin Eisele is appointed to represent Appellant on appeal. As the record on appeal has been lodged, our clerk will set a new briefing schedule for the appeal.
Motion granted.
The circuit court never ruled upon Hughes’s motion. | [
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Paul E. Danielson, Justice.
Appellant First Arkansas Bail Bonds, Inc. appeals from the circuit court’s judgment forfeiting its bond of $4,000 in favor of appellee the State of Arkansas. First Arkansas’s sole point on appeal is that the circuit court’s forfeiture of its bond failed to comply with Ark. Code Ann. § 16-84-207(b)(2)(B) (Repl. 2005). This case is one of three similar cases certified to this court by the court of appeals pursuant to Ark. Sup. Ct. R. l-2(b)(l), (4)-(6) (2007). For the reasons set forth in First Arkansas Bail Bonds, Inc. v. State, 373 Ark. 463, 284 S.W.3d 525 (2008), we reverse and remand for entry of an order consistent with this opinion.
A review of the record reveals the following facts. On May 27, 2005, Ever Alexander Guardado’s bail bond agreement with First Arkansas was filed in the circuit court. On January 25, 2006, Guardado failed to appear in the circuit court, and, on January 31, 2006, the circuit court issued an order advising First Arkansas of Guardado’s failure to appear. The order was sent by certified mail and provided:
Please be advised the above-named defendants) failed to appear in Circuit Court on WEDNESDAY, JANUARY 25,2006,pursuant to written notice being mailed on January 18, 2006. The one hundred and twenty (120) day period commences to run as of the date of this Order to show cause why the sum specified in the bail bond should not be forfeited.
Some months later, on November 3, 2006, the circuit court issued a bond forfeiture summons, reciting Guardado’s failure to appear and identifying First Arkansas as the surety on Guardado’s bond, “which bond guaranteed the defendant’s appearance on said date and on all dates as directed by the Court in these proceedings.” In addition, the summons stated that no reasonable excuse had been advanced to justify the failure to appear and further provided:
THEREFORE, it is herein considered, ordered and adjudged that the Circuit Clerk be, and hereby is directed to promptly cause an alias bench warrant to be issued for the immediate arrest of the defendant, and to cause the warrant to be delivered to the Sheriff of this Court for service upon the defendant. Upon the apprehension or surrender of the defendant, the initial appearance (bail) bond shall be $$5,000 ***CASH***; and
IT IS FURTHER ORDERED that the Circuit Clerk be, and hereby is, directed to promptly notify the surety (one or more) that the defendant should be surrendered to the Sheriff of this Court as required by the terms of the bail bond and notify the surety (one or more) to appear before the Circuit Court on DECEMBER 13, 2006, at 9:00 AM to show cause why the full amount specified in the bail bond or the money, if any, deposited in lieu of bail should not be forfeited to Sebastian County.
On December 13, 2006, a hearing was held at which counsel for First Arkansas argued that the summons issued on November 3 was not issued “immediately” as required by Ark. Code Ann. § 16-84-207(b)(2)(B). The circuit court rejected that argument and found judgment in favor of the State and against First Arkansas. The circuit court entered its judgment on December 14, 2006, and First Arkansas filed a timely notice of appeal.
On appeal, First Arkansas contends that because the summons issued November 3, 2006, was not issued “immedi ately” as required by Ark. Code Ann. § 16-84-207(b)(2)(B), strict compliance with the statute was not had, and the circuit court’s judgment should be reversed. As already stated, this case is one of three in which the same issue on appeal is raised. For the reasons set forth in First Arkansas Bail Bonds, Inc. v. State, 373 Ark. 463, 284 S.W.3d 525 (2008), we hold that strict compliance was not had, and we reverse and remand for entry of an order consistent with this opinion.
Reversed and remanded. | [
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Robert L. Brown, Justice.
Appellant Bryan K. Smith appeals from an order of the circuit court refusing to terminate the guardianship of Danny and Sandra Thomas for their grandson, B.S., who at the time of this writing is age nine. The court of appeals affirmed the circuit court’s order. See Smith v. Thomas, 100 Ark. App. 195, 266 S.W.3d 226 (2007). This court then granted Smith’s petition for review of that decision. We affirm the circuit court’s order.
On July 31, 1998, Bryan K. Smith and Dandra Thomas had a child, B.S., out of wedlock. Smith and Dandra Thomas never lived together, and Smith never had custody of the child. B.S. resided with his mother, Dandra, until her untimely death on December 27, 2003. Immediately after her death, on December 31, 2003, Dandra’s parents, Danny and Sandra Thomas, petitioned the Faulkner County Circuit Court to be appointed guardians of B.S. Smith counter-petitioned and also sought to be appointed B.S.’s guardian. On January 20, 2004, the circuit court entered an order granting a permanent guardianship to the Thomases. The circuit judge found that it was in B.S.’s best interest to be with his grandparents, as Smith, a full-time college student, could not provide the stability that B.S. needed at that point in his life. Smith was ordered to pay $130 per month in child support to the Thomases and was awarded liberal visitation rights.
On April 13, 2004, the Thomases petitioned the circuit court to modify the order of guardianship regarding visitation. They alleged that Smith continued to cohabit with a woman to whom he was not married and that B.S. was subjected to this living arrangement during visitation. They further asserted that Smith refused to inform them of his whereabouts during his visitation with B.S. and that he 'exhibited poor parenting ability. They requested that Smith be ordered to take parenting classes and that his visitation rights be limited. Smith responded and filed a counter-motion to terminate the guardianship.
On June 15, 2004, the circuit judge held a hearing and refused to modify Smith’s visitation award. The circuit judge did, however, order Smith to attend parenting classes and ordered both parties to attend mediation. During the hearing, the circuit judge ruled from the bench that Smith still could not provide the stability that B.S. needed because he was a full-time student. The judge ordered the mediation to improve the communication between the parties and said from the bench: “I want all four of you to submit to mediation because next summer I’m planning on a complete change of custody if things go the way they should, the way I’m expecting them to go.” The circuit judge further told Smith: “I’m going to expect to see you ready by next summer to do what you have to do.” The circuit judge noted that Smith would be graduating from college and marrying his fiancée the following summer.
On March 9, 2006, Smith again moved to terminate the guardianship and alleged that he had married his fiancée, that he had a stable income sufficient to provide for B.S. because of his employment with the Department of Human Services and as a bail bondsman, and that he had maintained continuous personal contact with B.S. for the past two years. On August 3, 2006, the circuit judge held a hearing. At the conclusion of the hearing, the judge found Smith “qualified” but also found some of his testimony “disturbing,” such as his failure to complete an appropriate parenting class against the judge’s clear direction and his inconsistent statements regarding his smoking habit. The circuit judge was further concerned about a domestic battery incident that had previously occurred in Smith’s home as well as his failure to finish college and his “bad feelings” toward the Thomases.
On August 17, 2006, the circuit judge entered an order denying Smith’s motion to terminate the guardianship. Relying on Freeman v. Rushton, 360 Ark. 445, 202 S.W.3d 485 (2005), the circuit judge ruled that although Smith was the natural father of B.S., the legal preference to which he was entitled under the guardianship statute was subservient to the best interest of the child. The judge then found that it was in B.S.’s best interest to remain in the custody of the Thomases. The judge ordered that visitation would continue as previously ordered and that both parties would continue mediation in an attempt to resolve the issues associated with visitation.
Smith now asserts in this appeal that the circuit court clearly erred in denying his petition to terminate the Thomases’ guardianship. He contends that pursuant to Arkansas law, a qualified parent should be preferred over all others for appointment as the child’s guardian. See Ark. Code Ann. § 28-65-204 (Repl. 2004). He insists that because the circuit court found that he was qualified, he should have been given preference over the Thomases for the custody of B.S. He further contends that he has discharged his duties and obligations as B.S.’s father and that he has maintained constant contact and visitation with the child. He notes that he is gainfully employed and able to financially support B.S., and he insists that he completed a proper parenting course as previously ordered by the circuit court. He maintains that he has consistently participated in the life of B.S. and that he has demonstrated his ability to take his parenting responsibilities seriously. He admits that he has yet to obtain a college degree and that he smokes to relieve stress, but he insists that this does not make him unsuitable to be a guardian under the guardianship statute and that there has been no testimony about his lack of moral character that would prevent him from being a loving and stable custodial guardian to B.S.
The Thomases counter that they have provided for B.S. since his birth, that he has lived in their home for most of his life, and that they have been his primary caregivers throughout his life. They insist that Smith continues to exhibit poor parenting skills and that he is not a proper role model for the child. They argue that his refusal to cooperate and communicate with them has created problems.
The Thomases further insist that Smith’s inappropriate behavior toward them has negatively impacted B.S. and that Smith has improperly discussed the court proceedings with B.S. They underscore the fact that the circuit court found during the August 3, 2006 hearing that Smith was his own worst witness, as he misrepresented the truth and misstated the facts to better suit him. They argue, in addition, that Smith has never taken financial responsibility for B.S., that he has never demonstrated stability in his own life, and that he has been insensitive to creating a stable and normal environment for B.S. For example, they point to the fact that Smith often leaves B.S. in the care of Smith’s sixteen-year-old nephew during visitation. They insist that the best-interest-of-the-child standard is the proper standard to apply in guardianship-termination proceedings and that the circuit judge correctly applied that standard in allowing B.S. to remain in their custody.
When we grant a petition for review, we treat the appeal as if it had been originally filed in this court. See Cedar Chem. Co. v. Knight, 372 Ark. 233, 273 S.W.3d 473 (2008).
Our standard of review in probate proceedings is clear:
We review probate proceedings de novo, but we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. When reviewing the proceedings, we give due regard to the opportunity and superior position of the probate judge to determine the credibility of the witnesses.
Devine v. Martens, 371 Ark. 60, 65, 263 S.W.3d 515, 520 (2007) (internal citations omitted).
Pursuant to our Guardianship Code, before appointing a guardian, the circuit court must determine: (1) the person for whom a guardian is sought is either a minor or otherwise incapacitated; (2) a guardianship is desirable to protect the interests and needs of the incapacitated person; and (3) the person to be appointed as guardian is qualified and suitable to act as such. Ark. Code Ann. § 28-65-210 (Repl. 2004); see also Devine v. Martens, supra; Freeman v. Rushton, supra; Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000).
This court has also said that “[w]here the incapacitated person is a minor, the key factor in determining guardianship is the best interests of the child.” Devine, 371 Ark. at 71, 263 S.W.3d at 523; Blunt, 342 Ark. at 669, 30 S.W.3d at 741. Our Guardianship Code specifically provides: “The parents of an unmarried minor, or either of them, if qualified and, in the opinion of the court, suitable, shall be preferred over all others for appointment as guardian of the person.” Ark. Code Ann. § 28-65-204(a) (Repl. 2004).
Indeed, “[t]he [guardianship] law prefers a parent over a grandparent or other third person unless the parent is proved to be incompetent or unfit.” Devine, 371 Ark. at 71, 263 S.W.3d at 523. We have said, however, that this preference, “is but one factor that the probate court must consider in determining who will be the most suitable guardian for the child.” Id.; Blunt, 342 Ark. at 669, 30 S.W.3d at 741. We have further said that “any inclination to appoint a parent or relative [as guardian] must be subservient to the principle that the child’s interest is of paramount consideration.” Blunt, 342 Ark. at 669, 30 S.W.3d at 741. Finally, we have made it clear that we equate a petition to terminate a guardianship to a change of child custody among natural parents. See, e.g., Crosser v. Henson, 357 Ark. 635, 187 S.W.3d 848 (2004); In re Guardianship of Markham, 32 Ark. App. 46, 795 S.W.2d 931 (1990).
In making its ruling, the circuit judge relied heavily on Freeman, supra. Indeed, the facts of that case are strikingly similar to those presented here. In Freeman, the appellant had a child out of wedlock with the appellees’ daughter. The child lived with his mother and the appellees, the child’s grandparents, after his birth. The appellant, who was the natural father, never had custody of the child, though he did pay child support and exercised some, but not all, of his visitation privileges. The child’s mother was subsequently killed in an automobile accident, and the appellees filed a petition for appointment of guardianship over the child. The appellant sought to obtain custody of the child by virtue of the statutory natural-parent preference. The circuit court appointed the appellees as the child’s guardians, finding that the child had lived with the appellees since birth, that the appellees had been responsible for meeting the child’s educational and medical needs, and that though the appellant was a qualified parent, he had never spent an extended amount of time with the child.
This court affirmed the circuit court’s decision in Freeman, stating that the statutory preference is only one factor that the circuit court must consider in determining who would be the most suitable guardian for the child. We interpreted Ark. Code Ann. § 28-65-204(a) as follows:
It is the trial court’s discretion to make a determination whether a parent is “qualified” and “suitable.” See Ark. Code Ann. § 28-65-204(a). Assuming such a determination is made, however, the analysis does not end there. This statute does not mandate appoint,ment. It merely states that such a parent “shall be preferred over all others for appointment as guardian.” Id. We must assume that had the General Assembly intended to require appointment, it would have stated that a parent who is qualified and suitable shall be appointed as guardian. This statute does not do that. This statute merely grants a preference and does not negate the trial judge’s discretion to weigh all of the facts before him and to determine the credibility of the witnesses in making his determination of guardianship.
Freeman, 360 Ark. at 451, 202 S.W.3d at 488.
In sum, in Freeman, this court made it abundantly clear that in both custody and guardianship situations, the child’s best interest is of paramount consideration, and the statutory natural-parent preference is one factor. However, that preference is ultimately subservient to what is in the best interest of the child. This principle has been recognized in other cases as well. See, e.g., Crosser, supra (natural-parent preference is not the absolute determinant in a termination-of-guardianship case, and the fact that the noncustodial parent was now qualified did not constitute a sufficient change in circumstances to warrant terminating the guardianship and taking custody of the child away from its grandparents); Blunt v. Cartwright, supra (statutory natural-parent preference does not automatically attach to a child’s biological parent, and court refused to terminate guardianship in favor of grandparents where it found father unsuitable custodian); In re Guardianship of Markham, supra (the welfare of the child is the polestar in every child custody case, and though the natural parent is entitled to a legal preference, it is the natural parent’s burden to show that termination of a guardianship held by the child’s aunt is in the best interest of the child).
In this case, the circuit court ruled that it was in B.S.’s best interest to remain in the custody of the Thomases under the guardianship. Though the circuit judge found Smith to be qualified, she found that some of his testimony was not credible, and she was disturbed by his testimony regarding his smoking habit and a previous domestic-battery incident. The circuit judge acknowledged that Smith was entitled to a natural-parent preference under § 28-65-204(a) but ruled that the preference was subservient to B.S.’s best interest. The circuit court weighed the evidence and found that it was in B.S.’s best interest to remain with the Thomases, with whom B.S. had lived for virtually all of his life and who had provided a caring and stable home for B.S. The circuit court’s ruling was not clearly erroneous. Based on this court’s previous decisions, the circuit court correctly ruled that the statutory natural-parent preference was subservient to the best interest of the child.
Smith argues for his second point on appeal that his due process rights were violated by the circuit court’s refusal to terminate the guardianship and that he was deprived of the liberty interest to raise his child. It appears from the record that Smith failed to raise this issue to the circuit court. This court has repeatedly said that an appellant must raise an issue and make an argument to the circuit court for it to be preserved for appeal, even if the issue is constitutional in nature. See, e.g., Strong v. State, 372 Ark. 404, 277 S.W.3d 159 (2008). Accordingly, we do not address this issue.
Affirmed.
This court acknowledges that the issue of who should be appointed as a child’s guardian is a separate issue from that of grandparent visitation. Grandparent visitation is governed by a completely different statute under the Family Law Code. See Ark. Code Ann. § 9-13-103 (Repl. 2008).
We disagree with the statement in the court of appeals’ opinion in this case that because this case does not involve the initial selection of a guardian, the natural-parent preference in § 28-65-204(a) is inapplicable. The statute does not make that distinction; nor does this court. Though we affirm the court of appeals’ ultimate decision, we repudiate that conclusion. | [
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Robert L. Brown, Justice.
The appellants, IngersollRand Company, DR Holding Corporation, and Glen Whitworth, appeal from a judgment entered in favor of the appellee, El Dorado Chemical Company (EDCC), in the amount of $9,796,218.37. The sole issue on appeal is whether the circuit court erred in refusing to enforce a hmitation-of-liability clause allegedly contained in the contract between the parties. We affirm.
EDCC is a chemical manufacturing company that produces and supplies ammonium nitrate fertilizers, industrial grade explosives, and industrial acids at its manufacturing facility in El Dorado. Within the manufacturing facility, EDCC operates four nitric acid production plants, one of which is the plant at issue, the DMW plant.
In 2004, EDCC initiated maintenance plans for the DMW plant, and as part of those plans, an Ingersoll-Rand E-516 Expander was scheduled to be repaired and rebuilt. An expander is a piece of equipment used in nitric acid production. As part of the production process, gas is forced through the expander, which causes blades within the expander to rotate. The expander, in turn, generates horsepower to operate other equipment within the plant. EDCC solicited proposals from various vendors for the repair and rebuilding of the E-516 Expander. On June 25, 2004, Dresser-Rand Company, a partnership, submitted a proposal in which it promised to complete fifteen specific repair items and to supply three new parts for the price of $119,845. Appellants Ingersoll-Rand Company and DR Holding Company are the general partners of Dresser-Rand Company.
On July 12, 2004, EDCC accepted Dresser-Rand’s proposal and issued a purchase order for Dresser-Rand to rebuild the E-516 Expander for the proposed price. Dresser-Rand accepted EDCC’s purchase order and faxed EDCC a letter explaining that EDCC must agree to Dresser-Rand’s “Terms of Sale and Conditions for Parts And Equipment” by signing and returning the letter to Dresser-Rand before the repair and rebuilding would begin. The letter specifically read:
Dresser-Rand Company will not start any work on your order unless and until either: (1) you first agree by signing and returning this letter within ten (10) days that this transaction will be governed exclusively by the Dresser-Rand Company’s Terms of Sale and Conditions for Parts And Equipment as printed on the back of this letter; or (2) we negotiate and both sign an Agreement containing mutually acceptable terms and conditions. Any terms and conditions submitted by Buyer’s inquiry or purchase order, or any other document shall have no effect.
Nothing, however, was printed on the back of the letter. EDCC signed and returned the letter. EDCC never received a document entitled “Terms of Sale and Conditions for Parts And Equipment.” EDCC did receive a faxed document from Dresser-Rand entitled “Terms and Conditions of Sale - Field Services and Repairs” at the same time as the letter, but EDCC never signed or returned that document to Dresser-Rand.
As requested by EDCC, Dresser-Rand removed the E-516 Expander from the DMW plant, transported the expander to Dresser-Rand’s facility in Oklahoma for the repair and rebuilding, and returned and reinstalled the repaired expander to the DMW plant. On October 8, 2004, the E-516 Expander failed and ultimately fell apart during operation. The expander was destroyed, and in the process, an oil line attached to the expander leaked oil onto hot equipment. A fire began, and the DMW plant was destroyed. After the E-516 Expander failed, EDCC removed a second expander, the E-520 Expander, which Dresser-Rand had rebuilt earlier in 2004, from storage where it had been stored for use as a spare. EDCC sent the E-520 Expander to a second maintenance company, Sulzer Hickham, Inc., for inspection. Sulzer Hickham discovered that the work performed on the E-520 Expander was deficient as well.
On August 7, 2006, EDCC filed a Second Amended Complaint against Ingersoll-Rand Company and DR Holding Corporation, the general partners of Dresser-Rand, and against Glen Whitworth, Dresser-Rand’s shop superintendent in Tulsa, Oklahoma, and John Does 1 - 10, unknown employees of Dresser-Rand (collectively referred to as Ingersoll-Rand). The complaint alleged that Ingersoll-Rand was negligent in the repairing and rebuilding of the E-516 Expander as well as the E-520 Expander and that Ingersoll-Rand’s negligence caused EDCC to suffer a loss of property due to the fire at the DMW plant. The complaint further alleged that EDCC lost production of nitric acid during the time that the fire damage to the DMW plant was being repaired, which resulted in lost profits, and also that EDCC suffered damages by having to pay for the E-520 Expander to be rebuilt a second time. EDCC asserted in its complaint that Ingersoll-Rand was liable under theories of negligence and strict liability, and it sought damages of over $10,000,000.
Ingersoll-Rand answered the complaint by raising an affirmative defense that a limitation-of-liability clause set out in the “Terms and Conditions of Sale - Field Services and Repairs” faxed to EDCC at the same time as the June 13, 2004 letter limited its liability to the amount of the contract price. Ingersoll-Rand then filed a Motion for Partial Summary Judgment, in which it argued that before Dresser-Rand began the repair and rebuilding of the E-516 Expander, EDCC had accepted Dresser-Rand’s terms and conditions, which contained the limitation-of-liability clause limiting Ingersoll-Rand’s liability to the amount of the contract price, $119,845. Ingersoll-Rand sought a partial summary judgment denying all of EDCC’s damage claims exceeding $119,845. The circuit court held a hearing on the partial-summary-judgment motion, following which it entered an order denying the motion. In its order, the circuit court refused to find as a matter of law that the contract between the parties limited Ingersoll-Rand’s liability and ruled that there were issues of fact regarding the contract that should be decided by a jury. Specifically, the circuit court said: “The Court does not find as a matter of law that the contract between the parties limits the liability of the defendants. There exist genuine issues of material fact to be decided by a jury.”
On October 4, 2006, EDCC moved to prohibit introduction of evidence at trial regarding the limitation-of-liability clause. Ingersoll-Rand also filed a motion in limine to exclude evidence of any damages over the contract price. On October 9, 2006, before the trial began, the circuit court ruled that any evidence of the limitation-of-liability clause in the alleged contract could not be presented to the jury. The circuit court also denied IngersollRand’s motion in limine. The circuit court did allow IngersollRand to introduce the document entitled “Terms and Conditions of Sale — Field Services and Repairs” into evidence with the limitation-of-liability clause redacted. At trial, Ingersoll-Rand also moved for a directed verdict at the close of the plaintiffs case and at the close of all evidence to limit damages to the contract amount of $119,845. Both motions were denied.
On October 12, 2006, the jury returned a verdict in favor of EDCC in the amount of $9,796,218.37. EDCC filed a Motion for Prejudgment and Postjudgment Interest. The circuit court denied EDCC’s motion for prejudgment interest and entered a judgment on November 13, 2006, conforming to the jury’s verdict and adding postjudgment interest. A corrected judgment was entered on November 14, 2006, which stated that the claims against Ingersoll-Rand, DR Holding Corporation, and Glen Whitworth had been fully tried and that all other parties were dismissed. Ingersoll-Rand moved to modify the amount of the judgment from $9,796,218.37 to $119,845, which was denied by the circuit court. Ingersoll-Rand filed a notice of appeal, and EDCC filed a notice of cross-appeal.
Ingersoll-Rand now claims as its sole point on appeal that the circuit court erred by refusing to enforce the limitation-of-liability clause contained in the asserted contract between the parties. Ingersoll-Rand initially contends that the clause is an enforceable exculpatory provision and that it is not contrary to public policy. Ingersoll-Rand acknowledges that exculpatory clauses are usually strictly construed against the parties relying on them but insists that strict construction is inapplicable in this case because both EDCC and Dresser-Rand are sophisticated and experienced business enterprises and that the contract in question was an arms-length transaction fairly entered into by both parties. Ingersoll-Rand advances the notion that EDCC was not forced into accepting Dresser-Rand’s terms and conditions but rather was invited to negotiate with Dresser-Rand, if EDCC chose not to agree with those terms and conditions. Hence, Ingersoll-Rand maintains that the elements required for the enforcement of an exculpatory clause are satisfied in this case. Moreover, IngersollRand urges that since EDCC knew of the liability that was being limited, EDCC stood to benefit from Dresser-Rand’s work on the E-516 Expander because of the reduced cost. In short, it argues that the contract was freely and fairly entered into by the parties.
We begin by acknowledging that the limitation-of-liability clause is clearly an exculpatory provision. An exculpatory provision “is one where a party seeks to absolve himself in advance of the consequences of his own negligence.” Jordan v. Diamond Equip. & Supply Co., 362 Ark. 142, 148, 207 S.W.3d 525, 530 (2005). Exculpatory provisions are not favored by the law due to the strong public policy of encouraging the exercise of care. See id. However, exculpatory provisions are not invalid perse. See id. This court has explained:
Because of the disfavor with which exculpatory contracts are viewed, two rules of construction apply to them. First, they are to be strictly construed against the party relying on them. Second, we have said that it is not impossible to avoid liability for negligence through contract, but that, to avoid such liability, the contract must at least clearly set out what negligent liability is to be avoided. Further, we have held that when we are reviewing such a contract, we are not restricted to the literal language of the contract, and we will also consider the facts and circumstances surrounding the execution of the release in order to determine the intént of the parties.
Id. at 149, 207 S.W.3d at 530 (internal citations omitted).
In addition, this court has recognized three requirements for the enforcement of an exculpatory provision:
[A]n exculpatory clause may be enforced: (1) when the party is knowledgeable of the potential liability that is released; (2) when the party is benefitting from the activity which may lead to the potential liability that is released; and (3) when the contract that contains the clause was fairly entered into.
Finagin v. Ark. Dev. Fin. Auth., 355 Ark. 440, 458, 139 S.W.3d 797, 808 (2003).
Bearing our jurisprudence relating to the disfavor in which exculpatory clauses are held in mind, we turn to the issue of whether the limitation-of-liability clause, which was contained in the document entitled “Terms and Conditions of Sale - Field Services and Repairs,” was part of the contract between EDCC and Dresser-Rand. The facts surrounding this issue are undisputed. As already related, on July 13, 2004, Dresser-Rand faxed EDCC a letter explaining that before work on the E-516 Expander could begin, EDCC was required to sign and return the letter indicating acceptance of the “Terms of Sale and Conditions for Parts And Equipment” as printed on the back of the letter. Those terms and conditions, however, were not printed on the back of the letter, but instead a document entitled “Terms and Conditions of Sale - Field Services and Repairs” was faxed as a separate document with the letter. EDCC signed the letter and returned it to Dresser-Rand, but did not sign and return the document entitled “Terms and Conditions of Sale — Field Services and Repairs.” Thus, the issue before this court is whether the asserted letter agreement by Ingersoll-Rand properly included the provisions contained in the “Terms and Conditions of Sale — Field Services and Repairs.”
When a contract refers to another writing and makes the terms of that writing a part of the contract, the two documents become a single agreement between the parties and must be construed together. See F & M Bldg. P’ship v. Farmers & Merchs. Bank, 316 Ark. 60, 871 S.W.2d 338 (1994); see also 11 Richard A. Lord, Williston on Contracts § 30:25 (4th ed. 1999). In order to incorporate a separate document by reference into a contract, “the reference must be clear and unequivocal, and the terms of the incorporated document must be known or easily available to the contracting parties.” 17 AC.J.S. Contracts § 316 (1999). The document to be incorporated “must be described in such terms that its identity may be ascertained beyond reasonable doubt.” Id; see also Lord, supra. Furthermore, “it must be clear that the parties to the agreement had knowledge of and assented to the incorporated terms.” Lord, supra, at 234.
There are virtually no cases in Arkansas discussing what is required for a document to be properly incorporated into a contract by reference. Other states, however, have addressed the issue, and a majority of states have concluded that the contract must clearly and specifically reference the document to be incorporated. See, e.g., Prichard v. Clay, 780 P.2d 359, 361 (Alaska 1989) (with regard to an incorporated document, “[pjarties do not undertake obligations contained in a separate document unless their contract clearly says so.”); Kleveland v. Chicago Title Ins. Co., 46 Cal. Rptr. 3d 314, 316 (Cal. Ct. App. 2006) (“Incorporation by reference requires that (1) the reference to another document was clear and unequivocal; (2) the reference was called to the attention of the other party, who consented to that term; and (3) the terms of the incorporated documents were known or easily available to the contracting parties.”); Estate of Kokjohn v. Harrington, 531 N.W.2d 99 (Iowa 1995) (per curiam) (recognizing that the “common thread” throughout cases from other jurisdictions regarding incorporation by reference was the requirement that the reference be clear and specific; Iowa Supreme Court adopted such a requirement for the first time); W. Wash. Corp. of Seventh-Day Adventists v. Ferrellgas, Inc., 7 P.3d 861 (Wash. Ct. App. 2000) (incorporation by reference must be clear and unequivocal, and it must be clear that parties to agreement had knowledge of and consented to incorporated terms) (quoting Lord, supra).
In the case at hand, the document entitled “Terms and Conditions of Sale - Field Services and Repairs,” which contained the limitation-of-liability clause, was not properly incorporated into the parties’ contract based on the authority cited above. It may have been Dresser-Rand’s intent to incorporate the above-titled document into the July 13, 2004 letter, but it failed to do so with the requisite clarity and specificity. The letter specifically requested that EDCC agree to the “Terms of Sale and Conditions for Parts And Equipment” as printed on the back of the letter, but nothing was printed on the back of the letter, and the terms and conditions that EDCC received were not titled the same way as the letter described. Accordingly, the inclusion of the terms and conditions containing the limitation-of-liability clause was not clear and unequivocal, and the identity of the terms and conditions was not ascertainable beyond a reasonable doubt due to the letter’s misstatement of the document’s title. Coupled with the disfavor with which this court views exculpatory provisions, we conclude that the limitation-of-liability clause was not incorporated by reference into the contract between EDCC and Dresser-Rand. Because the limitation-of-liability clause was not clearly and specifically made part of the parties’ contract, the circuit court did not err by refusing to enforce it as a matter of law.
Ingersoll-Rand relies heavily in its brief on appeal and in oral argument on the testimony during its cross-examination of David McDonald, maintenance manager at the DMW plant. McDonald testified that a document called “terms and conditions” came by fax together with a letter from Dresser-Rand. He responded in the affirmative that part of the letter that he signed said that he had to sign the letter and “acknowledge” the terms and conditions before Dresser-Rand would begin work on the E-516 Expander. Ingersoll-Rand urges that this testimony conclusively decides the incorporation-by-reference issue and constitutes an admission by a representative of EDCC that liability was limited. Ingersoll-Rand reads too much into this one question and answer. We dispute that “acknowledgement” of receipt of the terms and conditions meant that EDCC agreed to be bound by all the terms and conditions in the separate document. At the very least, “acknowledgment” is an ambiguous term in this context. More needed to be done to establish limitation of liability as part of the contract as a matter of law.
This leads to a second point that bears mention. EDCC sued Ingersoll-Rand in tort for the damage to its plant, and Ingersoll-Rand raised the terms and conditions with the clause limiting liability as an affirmative defense. As a result, when the circuit court refused to enforce the clause as part of the parties’ contract as a matter of law and referred to genuine issues of material fact to be decided by the jury, it was Ingersoll-Rand’s responsibility to present the issue of whether the provisions of the “Terms and Conditions of Sale — Field Services and Repairs” were part of the parties’ contract to the jury. This could have been done by special interrogatory. Had the jury determined that these terms and conditions were part of the contract, the circuit court would have had a firm basis upon which to reduce the jury’s award to the contract amount of $119,845. This, however, was not done by Ingersoll-Rand, even though issues of fact relating to contract formation are clearly questions for the jury. See Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996); see also Lord, supra, § 30:3.
The same holds true with respect to Ingersoll-Rand’s questioning of the damage award by the jury. A special verdict form could have been submitted to the jury breaking down the elements of the damages awarded. This too was not done.
We hold that the circuit court did not err in refusing to limit Ingersoll-Rand’s liability as a matter of law. Because we hold as we do, it is unnecessary to address EDCC’s alternative grounds for affirmance regarding breach of warranty and partner liability.
Affirmed.
Imber, J., not participating.
In its proposal, Dresser-Rand promised to supply new scroll pins, new stator housing pins, and all sealants.
A document with this title was not introduced into evidence at trial.
One of the EDCC arguments made to the trial court and referred to in its order was that the terms and conditions were not on the back of the letter received.
EDCC’s notice of cross-appeal specified that EDCC was appealing from the circuit court’s order and judgment denying prejudgment interest. EDCC’s motion to withdraw the cross-appeal was granted on October 2,2007.
Ingersoll-Rand argues in its brief to this court that regardless of how the terms and conditions were titled, the letter specifically identified the terms and conditions attached to the letter as “Per Dresser-Rand Form DR120 attached,” and that the form number DR120 was printed on the lower right corner of the terms and conditions faxed along with the letter. However, it appears that this argument was not raised to the circuit court, and, thus, this court will not address it. See Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007). In any event, this slight reference to the terms and conditions is not enough to incorporate the document in light of the misstated title in the body of the letter. | [
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Robert L. Brown, Justice.
Appellant Robert Thomas Maxwell appeals his judgment of conviction for unlawful discharge of a firearm from a vehicle in the first degree, for which he was sentenced to fife imprisonment. We affirm the judgment.
On the evening of May 8, 2006, Maxwell, whose brother, Dale Daniels, had been a resident at the Economy Inn on West Markham Street in Little Rock for several months, got into an argument with the desk clerk, David Kelso. Maxwell called the front desk and requested clean sheets for Daniels’s room, but Kelso refused, citing the motel’s policy of not handing out clean sheets after eleven a.m. Maxwell became irate, repeatedly shouting “you’re fucking dead.”
Maxwell and Daniels then came to the front desk. Kelso informed the other desk clerk, Imtiaz Khan, of the problem he was having with Maxwell, and Khan joined Kelso in the office. Khan attempted to calm Maxwell down, but Maxwell continued to threaten Kelso, stating that he was going to “go get an AK-47 and blow [Kelso’s] ass away.” In the end, Khan agreed to give Daniels a ten dollar refund of the money he had paid for that week’s rent of his room in exchange for Daniels checking out a day early. Daniels and Maxwell retrieved Daniels’s belongings and left the motel in a white four-door Lincoln, the car that Maxwell had been driving for several months.
After leaving the motel, Maxwell picked up Princess Smith, who was referred to at trial at different times as Maxwell’s girlfriend, his wife, and his “common-law” wife. The two went to the house of Wesley Grant, a friend of Maxwell’s, and borrowed Grant’s black Ford Explorer, saying that there was something wrong with Maxwell’s car and that they needed to run an errand. Cedric Barnes was also at Grant’s house. Barnes testified that he had brought a .380 caliber handgun with him. He testified that he left the gun on a table at Grant’s house when he went to the bathroom, and when he came back, the gun, Maxwell, and Smith were gone.
Sometime after midnight, Maxwell and Smith returned to the Economy Inn in Grant’s Ford Explorer. At least five shots were fired from the vehicle through the office window and into the office, one of which struck Kelso in the left shoulder and lodged in his arm. Kelso woke Khan, who called the police. Kelso was taken to the University of Arkansas for Medical Sciences Medical Center, where he was treated and released within a few hours. The bullet was not removed from his arm because of the danger of causing nerve damage.
The shooting was witnessed by a University of Arkansas for Medical Sciences police officer, Roger Blaine, who was sitting in his patrol car at a red light near the motel when he saw a black SUV stopped outside the office of the Economy Inn. He next saw muzzle flashes coming from the front passenger’s side window of the SUV and heard several gun shots. Blaine and a second officer pulled the SUV over and arrested Maxwell, who was in the driver’s seat, and Smith, who was in the passenger seat.
Little Rock Police officers responded shortly thereafter and found a gun in the grass in a place where it could have been thrown from the SUV. Barnes identified the gun as his gun that was taken from Grant’s house on the night of the shooting. Barnes also testified that, after Maxwell was arrested, he told Barnes that he had taken Barnes’s gun and that Smith had used it in the shooting. One spent shell casing was found inside the SUV, and an additional five shell casings were found outside the Economy Inn office. Bullet fragments were recovered from the motel’s office and were found to have been fired from Barnes’s gun.
Maxwell was charged with one count of discharging a firearm from a vehicle in the first degree in connection with the shot that hit Kelso. Maxwell was also charged with four counts of discharging a firearm from a vehicle in the second degree for the other shots that were fired into the Economy Inn office.
A two-day jury trial was held beginning on August 8, 2007. The State did not dispute that Smith might have been the shooter but argued that Maxwell was either the shooter or was an accomplice to the shooting. The State’s witnesses included Kelso, Khan, the arresting UAMS police officers, a crime scene specialist, and a tool mark examiner. Grant and Barnes, Maxwell’s friends from whom he obtained the car and gun, also testified for the State.
In his testimony regarding the events of the night of the shooting, Kelso described being shot as feeling like a “sting.” He showed the jury the scar on his shoulder where the bullet entered and an additional grazing scar on his back. He testified that the scar itched and that one time he had pain when he tried to lift his arm. He also testified that he had discomfort at the site of the wound for a couple of days after he was shot. The State did not present any medical testimony regarding Kelso’s wound.
After the State rested, Maxwell’s counsel moved for a directed verdict on the basis of insufficient evidence:
Your Honor, I would move for a directed verdict in this matter. We feel the State’s not met their burden of proof in showing that on or about May the 9th, 2006, Mr. Robert Maxwell, as to Count IV, did unlawfully, feloniously and knowingly discharge a firearm, a .380 caliber weapon from a vehicle, causing death or serious physical injury to David Kelso.
Nor has there been any showing that Mr. Maxwell on the same date in Count V, VI, VII and VIII recklessly, unlawfully, feloniously, and recklessly discharged a firearm, a .380 caliber handgun, from a vehicle that created a substantial risk of physical injury to another person, against the peace and dignity of the State of Arkansas.
I believe the testimony from Mr. David Kelso was that he initially, after an argument between the alleged party, was watching TV at the Economy Inn, started hearing reports from a gun, noticed glass (sic) firing, indicated that the last shot was, in fact, the shot that allegedly hit him.
Now, again, I think it’s convoluted for the State to say that these initial gunshots were reckless shots, were reckless behavior and yet the last shot was supposedly knowingly firing to cause these injuries to Mr. Kelso.
In addition, Your Honor, the testimony presented before (sic) the State today clearly established that Mr. Maxwell was, in fact, in the driver’s position of the vehicle allegedly used in this matter.
The shell casing that was found inside this particular vehicle was found in the passenger’s side vehicle.
Furthermore, Your Honor, I think that the shell casings found at the crime scene introduced into the photographs by the State indicates a similar pattern that fired from the passenger’s side of a particular vehicle.
In any event, there’s no indication of Mr. Maxwell having fired such a weapon or that he participated in the actions that apparently Miss Princess Smith committed.
I don’t think that there’s a sufficient proof before the Court to show that Mr. Maxwell was an accessory to this matter, and, therefore, all these charges pertaining to Mr. Maxwell should be dismissed.
The motion was denied.
Princess Smith then testified for the defense. At the close of all the evidence, Maxwell’s counsel again moved for a directed verdict and said:
Your Honor, I don’t think the State has shown a — through the testimony presented that the injury was, in fact, serious physical injury as defined by the statute.
Mrs. Martin asked Mr. Kelso to raise his shirt to show scar wounds, but I don’t think scars are enough to show serious physical injury. I believe the testimony from Mr. Kelso was that he was treated and then apparently immediately released from UAMS the same morning, and, again, I don’t think that would suffice to show serious physical injury, and, therefore, the State has not met their burden regarding Count IV.
The motion was again denied.
The jury was instructed by the circuit court that, in order to find Maxwell guilty of unlawful discharge of a firearm from a vehicle in the first degree, it had to find that he or an accomplice knowingly discharged a firearm from a vehicle and thereby caused serious physical injury to Kelso. The jury was also instructed, in accordance with Arkansas Code Annotated § 5-1-102(21) (Repl. 2006), that serious physical injury is physical injury that “creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.”
The jury found Maxwell guilty of four .counts of unlawful discharge of a firearm from a vehicle in the second degree and one count of unlawful discharge of a firearm from a vehicle in the first degree. For each of the five counts, the jury also found that either Maxwell or an accomplice employed a firearm as a means of committing the felony offense, thereby subjecting him to an enhanced sentence pursuant to Arkansas Code Annotated § 16-90-120 (Repl. 2006).
The jury returned a verdict, which included the maximum of forty years of imprisonment for each of the second-degree-unlawful-discharge-of-a-firearm convictions. For the first-degree-unlawful-discharge-of-a-firearm conviction, the jury’s verdict was life imprisonment. For each of the five convictions, the jury’s verdict was the maximum fifteen-year enhancement for use of a firearm. The circuit court then sentenced Maxwell accordingly, with the life sentence and each of the forty-year sentences to run concurrently and the fifteen-year firearm enhancement sentences to run concurrently with each other but consecutively to the life sentence.
Maxwell’s sole argument on appeal is that there was insufficient evidence introduced by the State to prove that Kelso suffered serious physical injury, which is an element of unlawful discharge of a firearm from a vehicle in the first degree under Arkansas Code Annotated § 5-74-107(a)(1) (Repl. 2005). As the jury was instructed, “serious physical injury is defined under § 5-1-102(21) as injury “that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.”
We decline to reach this issue of sufficiency of the evidence because it is not preserved for our review. A challenge to the sufficiency of the evidence is preserved by making a specific motion for directed verdict at both the conclusion of the State’s case and at the conclusion of all of the evidence. Ark. R. Crim. P. 33.1; Durham v. State, 320 Ark. 689, 698, 899 S.W.2d 470, 473 (1995). Rule 33.1 reads in pertinent part:
(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all of the evidence. A motion for directed verdict shall state the specific grounds therefor.
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal at the close of all of the evidence of a previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal. If for any reason a motion or a renewed motion at the close of all of the evidence for directed verdict or for dismissal is not ruled upon, it is deemed denied for purposes of obtaining appellate review on the question of the sufficiency of the evidence.
The rationale behind this rule is that “when specific grounds are stated and the absent proof is pinpointed, the circuit court can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof.” Pinell v. State, 364 Ark. 353, 357, 219 S.W.3d 168, 171 (2005). Without a trial court ruling on a specific motion, there is nothing for this court to review. Ashley v. State, 358 Ark. 414, 191 S.W.3d 520 (2004). In the instant case, counsel for Maxwell failed to make the specific motion regarding lack of evidence to prove serious physical injury at the close of the State’s case. Accordingly, his sufficiency argument is not preserved for our review.
We are mindful of the fact that Maxwell was sentenced to life imprisonment and this court is required to review all motions made for potential reversible error under Arkansas Supreme Court Rule 4-3(h). Nevertheless, this court has held in the past that failure to make the motions for directed verdict with specificity regarding the sufficiency issue on appeal equates to the motion never having been made. See Tillman v. State, 364 Ark. 143, 147, 217 S.W.3d 773, 775 (2005); Webb v. State, 327 Ark. 51, 60, 938 S.W.2d 806, 811-12 (1997). We hold that this is so even in situations where the motion is specific at the close of all the evidence but not at the close of the State’s case. The motion for directed verdict on the issue at hand is simply not preserved. Rule 4-3 (h), as a result, does not mandate review of the serious-physical-injury point when the directed-verdict motion has not properly been made. See Tillman, 364 Ark. at 147, 217 S.W.3d at 775.
A review of the record has been made for other reversible error pursuant to Supreme Court Rule 4-3 (h), and none has been found.
Affirmed.
The record is silent about what happened to Dale Daniels.
As a habitual offender with four or more prior felony convictions, Maxwell was subject to enhanced sentences pursuant to Ark. Code Ann. § 5-4-501 (b)(1) (Repl. 2006). | [
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Per Curiam.
Appellant Oscar Stilley has filed a motion requesting each justice on this court to disqualify from hearing the petition for rehearing that he has filed in Stilley v. James, 345 Ark. 362, 48 S.W.3d 521 (2001). He likewise requests each justice to disqualify from the pending appeal in Stilley v. James, No. 01-88. We heard oral argument on the motion on September 13, 2001, at which time Mr. Stilley and Appellees’ counsel, Abraham Bogoslavsky, were heard. After considering the arguments, both written and oral, we deny the motion.
While it is true that judges must refrain from presiding over cases in which they might be interested and must avoid all appearance of bias, there is a presumption of impartiality, and the party seeking disqualification bears the burden of proving bias or prejudice. See Seeco, Inc. v. Hales, 341 Ark. 673, 22 S.W.3d 157 (2000); Wilson v. Neal, 341 Ark. 282, 16 S.W.3d 228 (2000), cert. denied, 121 S. Ct. 1355 (2001). Mr. Stilley has failed to cite any convincing authority or legal argument in support of his motion. Particularly, he has not set forth any reason why any individual justice should disqualify. He has not alleged that any justice has a personal or financial interest in these cases. Nor has he in any way rebutted the presumption that each justice on this court is impartial. In other words, he has failed to demonstrate any bias or prejudice on the part of any justice. We agree with Appellees’ counsel that the mere fact that this court has, on occasion, ruled against Mr. Stilley’s clients does not constitute grounds sufficient to require this court to disqualify from hearing the cases at issue.
Moreover, Mr. Stilley offers his concern over the language in Stilley, 345 Ark. 362, 369, 48 S.W.3d 521, 526, wherein this court stated that “[i]n support of his argument that parol evidence is appropriate in this case, Mr. Stilley cites a single case, Hamburg Bank v. Jones, 202 Ark. 622, 161 S.W.2d 990 (1941).” He asserts that he cited three cases. Suffice it to say that Mr. Stilley cited only one case that was relevant. That case, however, was distinguishable from the facts presented in Stilley, 345 Ark. 362, 48 S.W.3d 521. Accordingly, each justice individually declines to disqualify.
Motion denied. | [
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W.H. “Dub” Arnold, Chief Justice.
The appellant was the duly elected sheriff of Montgomery County. He was charged by a special prosecuting attorney with tampering with a pubbc record, in violation of Ark. Code Ann. § 5-54-121 (Supp. 1999), by knowingly altering or making a false entry in a public record, specifically, a Montgomery County claim for allowance; he was also charged with theft by deception. The trial judge granted a directed verdict of acquittal on the charge of theft by deception at the close of the State’s case. After a trial by jury, the appellant was convicted of tampering with a public record, a Class D felony. Appellant was sentenced to pay a fine of $23.86, as well as $100.00 in court costs. Appellant appeals the conviction. We affirm.
The facts underlying the case are as follows. Appellant, as sheriff, paid for meals at the Sir Loin’s Inn in North Little Rock for two deputies, their wives, his wife, and himself; he then submitted a claim to Montgomery County for reimbursement for the meal expense. The claim was originally supported with a receipt from the Sir Loin’s Inn showing that six people ate the meal for a total amount of approximately $198.00. The claim was submitted to the county judge, who approved it on or about February 1, 2000. It was paid that same day. Subsequently, the county judge, after it was suggested to him by a State auditor that there should be additional documentation attached to the claim, asked for additional explanation of who attended the meal; a separate document, handwritten by appellant was then submitted on or about February 3, 2000, stating that two businessmen had attended the meeting, in addition to the six previously mentioned individuals. The two additional businessmen were, in fact, not at the dinner. The original felony information in the case charged that tampering with public records occurred on or about February 1, 2000; but, at the trial, the court allowed the prosecuting attorney to amend the charge to state that tampering with public records occurred on or about February 3, 2000, to coincide with when the handwritten note stating that the businessmen were at the dinner was given to the county judge.
Appellant moved at the close of the State’s case and again at the close of his case for a directed verdict for insufficient evidence of tampering with a public record; he contends that there was no evidence showing that he knew that the subsequent letter would be filed with the county clerk as part of the claim. Appellant asserts on appeal that there was insufficient evidence to sustain a conviction.
Appellant argues that the circuit court erred in refusing to grant his motion for a directed verdict. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001); Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000). When this Court conducts such a review based on an insufficiency-of-the-evidence argument, it does so using the following standard, as set out in Williams v. State, 331 Ark. 263, 962 S.W.2d 329 (1998):
Motions for directed verdict are treated as challenges to the sufficiency of the evidence. Johnson v. State, 326 Ark. 3, 929 S.W.2d 707 (1996); Penn v. State, 319 Ark. 739, 894 S.W.2d 597 (1995). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Dixon v. State, 310 Ark. 460, 470, 839 S.W.2d 173 (1992). Evidence is sufficient to support a conviction if the trier of fact can reach a conclusion without having to resort to speculation or conjecture. Id. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Id. Only evidence supporting the verdict will be considered. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993).
Williams, 331 Ark. at 265, 962 S.W.2d at 330 (quoting McGehee v. State, 328 Ark. 404, 410, 943 S.W.2d 585, 588 (1997)).
Arkansas Code Annotated § 5-54-121 provides that:
(a) A person commits the offense of tampering with a public record if, with the purpose of impairing the verity, legibility, or availability of a public record, he knowingly:
(1) Makes a false entry in or falsely alters any public record; or
(2) Erases, obliterates, removes, destroys, or conceals a public record.
(b) (1)(A) Tampering with a public record is a Class C felony if the public record is a court record.
(B) Tampering with a public record is a Class B felony if the public record is a court record and the person broke into any building o'r structure with the intent of tampering with a court record located therein.
(2) Otherwise, tampering with a public record is a Class D felony.
Arkansas Code Annotated § 5-54-101(11) (Repl. 1997) defines a public record as including “all official books, papers, exhibits, or records of any type required by law to be created by or received and retained in any governmental office or agency, affording notice or information to the public, or constituting a memorial of an act or transaction of a public office or public servant.”
Appellant contends that although he did provide false information on the additional, handwritten documentation concerning the meal at Sir Loin’s Inn, he did not know that this document was going to be filed with the Montgomery County Clerk. He claims that this handwritten explanation of the meal expenses does not constitute a “public record” as defined by Ark. Code Ann. § 5-54-101(11) because it was not one required by law to be kept. This argument is without merit.
Field Auditor Amanda Meyers of the Division of Legislative Audit testified that claims for allowance are required by law to be filed in the county clerk’s office, that the handwritten document prepared by appellant was attached to the claim, and that she relied on it as a basis for the claim for allowance. There was substantial testimony concerning the request by legislative auditors for documentation and discussion that without the documentation the claim would not be allowed, and an auditing exception would be made for it. Further, while appellant claims that he did not know it was to be filed with the circuit clerk and that he did not file it with the clerk, he did know that the county judge’s secretary, on behalf of the county judge, had requested that the additional documentation be provided.
Phillip Murray, another field auditor with the Division of Legislative Audit, testified that, by statute, claims for allowance must be supported with documentation that itemizes the expenditure of county funds as they are related to county business. Once the claims for allowance are approved to be paid by the county judge, the claim, along with any supporting documentation, is filed with the county clerk and retained for a period of years.
The appellant, in two separate conferences with State Field Auditor Meyers, never mentioned that the list of people who attended the meeting was inaccurate. Appellant testified that he understood that the purpose of the additional documentation was to explain his claim for allowance, and he admitted that the fist of people who attended the dinner was incorrect; yet, he claims it was a mistake, rather than a knowing falsity. This claim that the false information was a “mistake” rather than a purposeful act was clearly an issue of credibility of the witness for the jury to decide. See Marta v. State, 336 Ark. 67, 983 S.W.2d 924 (1999).
It seems obvious that as all claims for allowance and supporting documents are required by statute to be created and retained in the county clerk’s office, appellant’s handwritten documentation fits squarely into the definition of a public record, as a matter of law, and his argument in this regard is, therefore, without merit.
The appellant next argues that there is insufficient evidence to support the verdict because the State faded to introduce into evidence the statutes showing that the handwritten documentation was required by law to be received or retained by a government office. This argument, likewise, is without merit. The trial court is presumed to be aware of the substantive law of this State. See State v. Jones, 338 Ark. 781, 3 S.W.3d 675 (1999). Therefore, it is not necessary to introduce evidence of statutes in this State. See Washington v. State, 319 Ark. 583, 892 S.W.2d 505 (1995).
Appellant goes on to argue that the jury had to speculate as to whether or not the handwritten document was a public record because the State did not present any evidence that it was required by law to be filed; this is, likewise, without merit. Montgomery County Clerk Debbie Baxter testified that claims for allowance and their supporting documents are filed in the Montgomery County Clerk’s office; and two State Auditors testified that the claims and supporting documents were required to be filed with the county clerk’s office and kept for a period of years for the purpose of yearly auditing. No evidence was introduced to the contrary. Therefore, it appears clear that there was substantial evidence that the handwritten document was a public record within the statutory definition read to the jury during jury instruction.
The appellant asserts that the trial court lacked subject-matter jurisdiction over the criminal charge of tampering with a public record because the county court is vested with original jurisdiction to allow or disallow claims; the appellant is mixing apples and oranges. Certainly, the trial court had jurisdiction over the subject matter of the criminal charge. The propriety of the county’s allowance or disallowance of reimbursement for the claim was not the subject matter of the criminal charge, and the appellant’s reliance on this argument is misplaced.
Most unpersuasive, however, is appellant’s argument that he cannot be held accountable for tampering with a public record because he was not aware that his claim for allowance and the supporting documents were public records. It is well setded that ignorance of the law or lack of knowledge of a legal requirement is never an excuse to a criminal charge. See Crail v. State, 309 Ark. 120, 827 S.W.2d 157 (1992).
It is clear, when viewing the evidence in the light most favorable to the State, that substantial evidence did exist to support the verdict. As such, we affirm appellant’s conviction and sentence in all respects.
Affirmed. | [
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Per Curiam.
Appellant Kedron Johnson, by and through his has filed a motion for rule on the clerk. The motion reflects that the record on appeal was due to be filed on September 14, 2001. The record was tendered with this court’s clerk on September 18, 2001. Appellant’s attorney, Clay T. Buchanan, admits in his motion that the record was tendered late due to a mistake on his part.
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. Jones v. State, 338 Ark. 29, 992 S.W.2d 85 (1999) (per curiam) (citing Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986)(per curiam)).
The motion for rule on the clerk is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979)(per curiam). | [
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Per Curiam.
Appellant, Benjamin C. Duke, by and through his attorney, Bryan Christian, has filed a motion to file a belated appeal. His attorney accepts responsibility for the untimeliness in filing a notice of appeal and states in his motion that the notice of appeal was tendered late due to a mistake on his part. We find that such error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam); Jacks v. State, 344 Ark. 405, 39 S.W.3d 798 (2001).
Appellant’s motion is granted. A copy of this per curiam will be forwarded to the Committee on Professional Conduct. | [
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W.H. “Dub” Arnold, Chief Justice.
A Mississippi County jury found appellant Rodney Barnett guilty of the capital murder of Lester Frazier for which appellant was sentenced to life imprisonment in the Arkansas Department of Correction. We affirm appellant’s conviction and sentence. In the early morning hours of June 1, 1994, the family of 79-year-old Lester Frazier reported to the Blytheville Police Department that Mr. Frazier was missing from his apartment, and his apartment was in disarray. A member of Mr. Frazier’s family had gone to his apartment to pick him up and take him to his place of departure for a trip he had been planning. On June 4, 1994, Mr. Frazier’s body was discovered floating in the Mississippi River near Osceola. An autopsy by the State Medical Examiner’s Office determined that Mr. Frazier’s death was a homicide, primarily caused by blunt trauma to the head.
Donneitha Bradford, who had previously pled guilty to a charge of murder in the first degree for the death of Lester Frazier and had received a forty-year sentence, testified, among other things, that the appellant solicited her assistance in robbing Mr. Frazier and that she went to Mr. Frazier’s residence with appellant but that when she left the residence, Mr. Frazier was still alive, and she saw Mr. Frazier and appellant leaving the residence together. Another witness, Larry Black, testified that, while he shared a jail cell with appellant, appellant admitted to his participation in the killing of Mr. Frazier.
Appellant raises the following two arguments on appeal from his conviction:
1) The trial court erred by denying his motions for directed verdict because the testimony of his accomplice, Donneitha Bradford, was not sufficiently corroborated; and
2) The trial court erred by unduly restricting his ability to cross-examine Bradford and impeach another prosecution witness, Larry Black,
I. Directed- Verdict Motions
A motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. See McFarland v. State, 337 Ark. 386, 989 S.W.2d 899, cert. denied, 120 S. Ct. 334 (1999). When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the fight most favorable to the State. See, e.g., Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999); Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. Id. Notably, the evidence may be either direct or circumstantial. See Gillie v. State, 305 Ark. 296, 301, 808 S.W.2d 320, 322 (1991). Circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Gillie, 305 Ark. at 301, 808 S.W.2d at 322 (citing Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986)).
As he did below, appellant argues on appeal that the prosecution failed to corroborate the testimony of Donneitha Bradford. Arkansas Code Annotated § 16-89-111 (e)(1) (1987) requires the testimony of an accomplice to be corroborated in order to convict a defendant of a felony. For purposes of § 16-89-111 (e)(1), corroborating evidence is sufficient if, without considering the accomplice’s testimony, other evidence at trial independently establishes the offense and tends to connect the defendant with its commission. See, e.g., Davis v. State, 310 Ark. 582, 839 S.W.2d 182 (1992). The corroborating evidence does not have to be sufficient, standing alone, to sustain a conviction. See, e.g., Hogue v. State, 323 Ark. 515, 915 S.W.2d 276 (1996). Moreover, corroboration can be provided by the acts, declarations, or testimony of the accused. See, e.g., Daniels v. State, 308 Ark. 53, 821 S.W.2d 778 (1992).
Although appellant did not testify, a statement that he had given to the Blytheville Police Department was offered into evidence and corroborates the testimony of Donneitha Bradford. In his statement, appellant acknowledged being at the scene with Bradford. Fie stated that he left Mr. Frazier’s apartment with Bradford and Mr. Frazier for the purpose of going to the bank to retrieve some money, using Mr. Frazier’s ATM card.
The testimony of State’s witness Larry Black provided additional corroboration. Black testified that, while he shared a jail cell with appellant, appellant told him that Donneitha Bradford asked him to help her rob Mr. Frazier, whom she thought would have some money because he was getting ready to leave on a trip. Although appellant claimed to have initially resisted, he admitted to Black that he later did agree to go with Bradford. The plan was for Bradford to enter the house alone and then later let appellant inside. When the two discovered that Frazier did not have any money, they took him to a bank to have him get money, but he refused to do so. Consequently, appellant told Black, they took Frazier out to the Mississippi River and beat him with a rock and nickel-plated .32 pistol until he was dead. They then pushed his body into the river at Osceola.
Appellant, in effect, concedes that Black’s testimony adequately corroborated Bradford’s, by arguing that the testimony was “totally incredible” and an “outright fabrication.” This argument challenges the credibility of the witness. This Court, however, does not determine the credibility of witnesses because that is the job of the trier of fact. See Harris v. State, 331 Ark. 353, 961 S.W.2d 737 (1998). The principles of appellate review apply equally to cases in which the claimed deficiency in the prosecution’s case is a lack of accomplice corroboration. See, e.g., Henderson v. State, 337 Ark. 518, 990 S.W.2d 530 (1999).
Under these standards, we hold that the evidence at trial was more than, sufficient to corroborate Bradford’s testimony that she and appellant robbed Lester Frazier, kidnapped him, and later killed him.
II. Appellant’s Right of Confrontation, Cross-Examination, or Impeachment of Witnesses
As his second argument on appeal, appellant claims that the trial court violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution with respect to rulings it made concerning his proposed cross-examination of Donneitha Bradford. He also appears to argue under this point that the trial court violated his Confrontation Clause rights a second time by improperly limiting his presentation of evidence that he claims would have further impeached Larry Black.
Before Bradford testified, the prosecution moved in limine to prevent appellant from asking her what sentence she received for pleading guilty to the first-degree murder of Lester Fraizer on the ground that her sentence was irrelevant. Appellant responded that he should be able to impeach her and attack her credibility by exploring why she would plead guilty and accept a forty-year sentence for a murder that she claimed she did not commit. The prosecution, in turn, argued that, if appellant did ask such questions, then the State should be allowed, on redirect, to ask Bradford about having been found guilty by a jury of Frazier’s capital murder, a conviction that was reversed and remanded.
After further discussion, the trial court stated that appellant “[c]ertainly” and “[o]bviously” could ask Bradford why she pled guilty to a crime that she claimed she did not commit. It also ruled that it would not prohibit questions about her sentence, but that if appellant asked questions about' her sentence, then the prosecution would be entitled, on redirect, to ask her whether she accepted such a sentence to avoid receiving a harsher sentence, such as she had received after her jury trial. Appellant responded that, although the court’s ruling allowed him to ask what he wanted, it put him in an “unfair position[.]” During his cross-examination of Bradford, appellant asked her whether she pled guilty to first-degree murder. He did not, however, ask her why she pled guilty to a crime she maintained that she did not commit or what sentence she received. The prosecution did not conduct a redirect examination of Bradford.
On appeal, appellant claims that the trial court violated his Confrontation Clause right to cross-examine Bradford by ruling that, if he asked her about her sentence on cross-examination, then the prosecution could, on redirect, ask her about having been convicted of the capital murder of Frazier. This argument is without merit.
The trial court did not in any way restrict appellant’s cross-examination of Bradford. It ruled, rather, that he could ask her all of the questions he proposed, including why she would plead guilty to a crime she claimed that she never committed or accept a forty-year sentence. Appellant never asked Bradford the former question, even though the trial court ruled that his asking it would not open the door to any questions by the prosecution. His failure to do so was his own strategic decision and did not stem from any alleged error by the trial court.
While the trial court’s ruling concerning the cross-examination of Bradford about her sentence no doubt left appellant with a tough decision to make, the court in no way restricted his cross-examination, much less in violation of the Confrontation Clause. In the case of Watson v. State, 318 Ark. 603, 887 S.W.2d 518 (1994), this Court assumed, without deciding, that barring a defendant from asking his codefendant what sentence she received after pleading guilty violated the Confrontation Clause. The instant case, however, does not present the question left undecided in Watson because the trial court here did not prohibit appellant from asking Bradford about her sentence.
Appellant is effectively asking this Court to conclude that the Confrontation Clause protects criminal defendants from having to make strategic decisions about the extent of their cross-examination and bars the prosecution from exploring issues raised on cross-examination during redirect. That, however, is contrary to existing authority. See, e.g., United States v. Strothers, 77 F.3d 1389 (D.C.Cir.), cert. denied, 519 U.S. 956 (1996) (holding that district court’s ruling that, if appellants asked about subject on cross-examination, then government could elicit related information on redirect, did not violate Confrontation Clause because appellants’ failure to ask about subject was strategic choice and not limitation on cross- examination); see also generally Delaware v. Fensterer, 474 U.S. 15 (1985) (explaining that Confrontation Clause guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish[ ]”)(emphasis in original).
Appellant’s claim with respect to his proposed impeachment of Larry Black similarly lacks merit. Three weeks before he was murdered, Lester Fraizer reported to police that a camcorder had been taken during a burglary of his home. During appellant’s cross-examination of Larry Black, he asked Black whether he had ever received a camcorder from Frankie Milton after Lester Frazier’s murder or whether Milton owed him any money around the time of the murder. Black testified that he could not recall receiving a camcorder from Milton, but he denied that Milton owed him money at the time. Appellant called Milton as a witness. Although Milton testified about various matters, the trial court excluded, as collateral, his proffered testimony that, just before Lester Frazier’s murder, he gave Black a camcorder, allegedly Frazier’s, as payment for a debt and that Black, in turn, gave him a ,rock of crack cocaine. Appellant’s only argument for admission of the evidence was that its purpose was to impeach the testimony of Larry Black.
On appeal, appellant claims that the trial court committed reversible error by barring his proposed questioning of Milton because the fine of inquiry was not collateral. Appellant’s argument, however, is not preserved for appellate review because he never challenged below the trial court’s assertion that the proposed questioning of Milton was collateral. See, e.g., Hubbard v. State, 328 Ark. 658, 946 S.W.2d 663 (1997).
For all of the above reasons, we find no error in the trial court’s rulings with regard to appellant’s right to confront witnesses.
III. Rule 4-3 (h) Compliance
The record has been reviewed for prejudicial error pursuant to Ark. Sup. Ct. R. 4-3 (h), and no reversible errors were found.
Affirmed. | [
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Per Curiam.
Appellant Kevin Brasel, by and through his attorney, has filed a motion for rule on clerk. His attorney, Dale W Finley, states in the motion that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Per Curiam.
Appellant Alex Ware, by and through his attorney, has filed a motion for rule on clerk. His attorney, Gerald A. Coleman, states in the motion that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Donald L. Corbin, Justice.
This is a postconviction appeal from the denial of relief under Ark. R. Crim. P. 37. Appellant Rafael Camargo was convicted in the Crawford County Circuit Court of two counts of capital murder and sentenced to death for the October 1994 murders of Deanna Petree and her fifteen-month-old son, Jonathan Macias. This court affirmed the convictions, but reversed the death sentence and remanded for resentencing. See Camargo v. State, 321 Ark. 631, 940 S.W.2d 464 (1997). On remand, Appellant was again sentenced to death, and this court affirmed. See Camargo v. State, 337 Ark. 105, 987 S.W.2d 680 (1999). Appellant then filed a petition for relief under Rule 37. Following a hearing on the petition, the trial court denied relief. Appellant raises five points for reversal. The first three points concern alleged errors made by trial counsel and the trial court during jury selection in both the first trial and resentencing. The remaining two points are claims that counsel were ineffective for fading to move to dismiss for lack of a speedy trial and failing to properly investigate and present mitigating evidence during sentencing. We find no merit and affirm.
We note at the outset the well-settled test for proving claims of ineffective assistance of counsel and the corresponding standard of review:
To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. Jones v. State, 340 Ark. 1, 8 S.W.3d 482 (2000); Weaver v. State, 339 Ark. 97, 3 S.W.3d 323 (1999). This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Id. at 99, 3 S.W.3d at 325. Petitioner must also show that the deficient performance prejudiced his defense; this requires a showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Id. Unless the petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000) (per curiam); Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997).
The reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. To rebut this presumption, the petitioner must show that there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., that the decision reached would have been different absent the errors: Id. A reasonable probability is one that is
sufficient to undermine confidence in the outcome of the trial. Id. In making a determination on a claim of ineffectiveness, the totality of the evidence before the factfinder must be considered. Chenowith, 341 Ark. 722, 19 S.W.3d 612. This court will not reverse the denial of postconviction relief unless the trial court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Jones, 340 Ark. 1, 8 S.W.3d 482; State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999).
Coulter v. State, 343 Ark. 22, 27, 31 S.W.3d 826, 829 (2000) (quoting Noel v. State, 342 Ark. 35, 38, 26 S.W.3d 123, 125 (2000)). With this standard in mind, we review the issues raised by Appellant.
I. Jury Selection
Appellant’s first three points concern alleged errors made by trial counsel and the trial court during jury selection in both his first trial and resentencing. He argues that: (1) the trial court erred in refusing to strike for cause three jurors during the first trial and one juror during resentencing; (2) trial counsel were ineffective in failing to challenge for cause two jurors during the first trial and five jurors during resentencing; and (3) trial counsel were ineffective for faffing to preserve the jury-selection errors for appeal and in faffing to pursue such errors on appeal. We discuss the first and third allegations of error together, as they are interrelated.
Appellant first argues that the trial court erred in denying his motions to strike for cause a total of four jurors during both the first trial and the resentencing. We do not address this argument, as it should have been raised on appeal. This court has consistently held that Rule 37 does not provide a remedy when an issue could have been raised in the trial or argued on appeal. See, e.g., Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001); Cothren v. State, 344 Ark. 697, 42 S.W.3d 543 (2001); Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999) (per curiam). The only exception is where the questions raised are so fundamental as to render the judgment void and open to collateral attack. Id. That exception does not apply here. Accordingly, we will only consider Appellant’s claim that his trial counsel were ineffective for faffing to properly preserve this issue and raise it on appeal.
The law is well settled that to challenge a juror’s presence on appeal, an appellant must demonstrate two things: (1) that he exhausted his peremptory challenges, and (2) that he was forced to accept a juror who should have been excused for cause. See Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000); Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999); Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998). The record in this case reflects that none of the jurors sought to be removed for cause was seated on either jury; rather, each juror was removed by using a peremptory challenge. The record reflects further that Appellant did not exhaust his peremptory challenges during either trial. Trial counsel testified that they did not pursue on appeal a challenge to the trial court’s refusal to strike the jurors offered for cause because they knew that they had not used all of their peremptory challenges. They stated that the decision of whether and when to use a peremptory challenge is a tactical decision. They explained that they do not purposely use up all of their peremptory challenges hoping to get a prejudiced juror just so they can challenge the trial court’s rulings on appeal.
We agree with the trial court that counsels’ actions did not amount to ineffective assistance of counsel. This court has consistently held that trial counsel is not ineffective for not pursuing on appeal an argument that is without merit. See, e.g., Noel, 342 Ark. 35, 26 S.W.3d 123; Sanford v. State, 342 Ark. 22, 25 S.W.3d 414 (2000); Monts v. State, 312 Ark. 547, 851 S.W.2d 432 (1993). Accordingly, because the defense did not exhaust all of its peremptory challenges and because Appellant has not shown that he was forced to accept a juror who should have been excused for cause, any argument raised on appeal would have been without merit. Moreover, we agree with the trial court that the use of peremptory challenges is largely a matter of trial strategy. See Buckley v. State, 341 Ark. 864, 20 S.W.3d 331 (2000); Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998) (per curiam); Irons v. State, 272 Ark. 493, 615 S.W.2d 374 (1981). 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. Noel, 342 Ark. 35, 26 S.W.3d 123. We thus affirm the trial court’s ruling on this issue.
For his last point regarding jury selection, Appellant argues that trial counsel were ineffective for failing to challenge for cause two jurors in the first trial and five jurors during resentencing. There is no merit to this argument regarding the two jurors not challenged in the first trial, as Appellant admits that both those jurors were removed with peremptory challenges. Appellant also admits that four of the five jurors who allegedly should have been challenged for cause during the resentencing were ultimately removed from the jury using peremptory challenges. That leaves only one juror, Jerry Marion, who was seated on the resentencing jury, that Appellant argues should have been challenged for cause.
Appellant’s challenge to juror Marion stems from the fact that the juror admitted during voir dire that his sister-in-law had served as a juror on Appellant’s first trial, wherein he was sentenced to death. The trial court asked juror Marion whether he had discussed the case with his sister-in-law. He admitted that he had discussed the case with her a little bit and that he did hear some things about it. He stated, however, that there was nothing about the situation that would keep him from being fair and impartial. Subsequently, defense counsel had the opportunity to discuss the matter with juror Marion. Again, the juror stated that there was nothing about the fact that his sister-in-law had served on the first jury that would influence him one way or the other.
Attorney Robert Marquette, who, along with Marvin Honeycutt, represented Appellant during the resentencing trial, testified that he had been the one who questioned juror Marion. Although he could not recall the particular reason that counsel chose not to strike him, Mr. Marquette stated that he remembered questioning juror Marion concerning his feelings about the capital-murder process and whether he could be fair with regard to listening to the defense’s testimony about mental retardation. Mr. Marquette stated that the defense may have felt that juror Marion would be sympathetic to the evidence regarding Appellant’s borderline or mild mental retardation. In any event, he stated that they felt that he would be a good and impartial juror, and that counsel never would have accepted him if they had thought that he would be prejudiced against the defense. The trial court found that the decision to retain juror Marion was one of trial strategy and, thus, did not amount to ineffective assistance of counsel. We agree.
As previously stated, the decision to seat or exclude a particular juror may be a matter of trial strategy or technique. Buckley, 341 Ark. 864, 20 S.W.3d 331; Catlett, 331 Ark. 270, 962 S.W.2d 313; Irons, 272 Ark. 493, 615 S.W.2d 374. Matters of trial strategy and tactics are not grounds for a finding of ineffective assistance of counsel. Noel, 342 Ark. 35, 26 S.W.3d 123. Thus, even though another attorney may have chosen a different course, trial strategy, even if it proves unsuccessful, is a matter of professional judgment. Id. Based on the testimony given by defense counsel, we cannot say that the trial court erred in finding that the decision to keep juror Marion was anything other than trial strategy. Moreover, we agree with the trial court that Appellant failed to demonstrate that he was prejudiced by the juror being seated. A juror is presumed to be unbiased and qualified to serve, and the burden is on the appellant to prove otherwise. See Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001); Smith v. State, 343 Ark. 552, 39 S.W.3d 739 (2001). Accordingly, we affirm the trial court’s denial of relief on Appellant’s jury-selection claims.
II. Speedy Trial
Appellant’s second point for reversal is that the trial court erred in ruling that trial counsel were not ineffective for failing to make a motion to dismiss for lack of a speedy trial. The trial court’s order reflects that Appellant was arrested on October 31, 1994, and his trial was held on December 12, 1995, forty-two days in excess of the one-year period provided in Arkansas Rules of Criminal Procedure 28.1 and 28.2. Accordingly, if trial counsel had moved for a dismissal, they would have made a prima facie showing of a violation of the rule, and the burden would have shifted to the State to show good cause for the delay. Chenowith, 341 Ark. 722, 19 S.W.3d 612. Whether counsel were ineffective, therefore, depends on whether the State would have been able to prove that there were excluded periods sufficient to bring Appellant’s trial within the one-year period. Id. In making this determination, we apply the versions of Rules 28.1 through 28.3 that were in effect at the time of Appellant’s trial.
The trial court found that there were three separate periods that were excludable from the one-year calculation: (1) the time from January 12, 1995, to June 19, 1995, a total of 158 days, due to Appellant’s request for a mental evaluation; (2) the time from July 12, 1995, to August 22, 1995, a total of forty-one days, due to a second request for a mental evaluation; and (3) the time from November 6, 1995, to December 12, 1995, a total of thirty-six days, due to a continuance requested by Appellant. Appellant only contests the trial court’s ruling regarding the first and third periods.
Appellant does not dispute that the time necessary to complete a mental examination requested by a defendant, pursuant to Ark. Code Ann. § 5-2-305 (Repl. 1997), is excluded from the one-year period for speedy trial. See Ark. R. Crim. P. 28.3(a); Scott v. State, 337 Ark. 320, 989 S.W.2d 891 (1999); Morgan v. State, 333 Ark. 294, 971 S.W.2d 219 (1998). Nor does he question that the excludable period resulting from a defendant’s request for mental examination runs from the date the exam is ordered to the date the report is filed. Id. Rather, Appellant contends that because he was not actually taken to the Arkansas State Hospital for examination, the period from January 12, 1995, to June 19, 1995, is not excludable. There is no merit to this argument.
The plain language of section 5-2-305 (a) reflects that when a defendant announces his intention to rely on the defense of mental disease or defect, or where he places his fitness to proceed in issue, the court “shall immediately suspend all further proceedings in the prosecution.” We see no reason, and Appellant has not offered one, why we should qualify the clear language of the statute by holding that proceedings are only suspended if the mental evaluation takes place at the State Hospital. This court has not previously drawn a distinction between those mental evaluations performed at the State Hospital and those performed at other locations by doctors from the State Hospital. Indeed, in Hufford v. State, 314 Ark. 181, 861 S.W.2d 108 (1993), this court rejected the appellant’s due-process argument and held that because he was examined by doctors from the State Hospital, even though the examination took place elsewhere, there was substantial compliance with the order and with the requirements of section 5-2-305 (b). Accordingly, we reject Appellant’s argument that the trial court erred in excluding this period from the calculation of speedy trial.
Lastly, Appellant argues that it was error to exclude the time from November 6, 1995, to December 12, 1995, based on his request for a continuance. Appellant does not deny that he requested the continuance. Moreover, he acknowledges that delays resulting from continuances given at the request of the defendant or defense counsel are excluded in calculating the time for a speedy trial. See, e.g., Ferguson, 343 Ark. 159, 33 S.W.3d 115; Scott, 337 Ark. 320, 989 S.W.2d 891. He argues, however, that because no docket entry or written order was made to show that the motion was granted, the period cannot be excluded under Rule 28.3. We disagree.
While Appellant is correct in asserting that Rule 28.3 requires that excluded periods be set forth by the court in a written order or docket entry, he is incorrect in insisting that the trial court’s failure to strictly comply with the requirements of this rule warrants reversal in this case. This court has consistently held that where a case is delayed by the accused and that delaying act is memorialized by a record taken at the time it occurred, that record may be sufficient to satisfy the requirements of Rule 28.3. See Goston v. State, 326 Ark. 106, 930 S.W.2d 332 (1996); Jones v. State, 323 Ark. 655, 916 S.W.2d 736 (1996); Wallace v. State, 314 Ark.
247, 862 S.W.2d 235 (1993). This reasoning is based on the principle that a defendant may not agree with a ruling by the trial court and then attack that ruling on appeal. Goston, 326 Ark. 106, 930 S.W.2d 332.
Here, the docket sheet reflects that on November 2, 1995, a motion for continuance was filed by Mr. Marquette, and that on November 3, 1995, a response to the motion was filed by the State. Both the written motion and the State’s response are contained in the record. The docket sheet reflects further that on November 7, 1995, letters were sent to counsel from the trial court’s case coordinator informing them that the case had been rescheduled for jury trial on December 11, 1995. Additionally, during the Rifle 37 hearing, defense counsel recalled that the trial court granted the continuance during a hearing on the record. Counsel Marquette testified that despite the lack of a written order, he believed that the trial court had complied with the requirements of Rule 28.3, because the motion was granted in open court and the docket entry reflected that the case had been rescheduled to a date certain. Based upon this evidence, we conclude that the trial court was not in ertor in excluding the time from November 6, 1995, to December 11, 1995, from the calculation of speedy trial.
[17] In sum, we affirm the trial court’s ruling that counsel were not ineffective for failing to make a motion to dismiss for lack of a speedy trial. The record reflects that while Appellant’s trial took place forty-two days beyond the one-year period for speedy trial, there were excludable periods well in excess of that time. As such, Appellant was not denied the right to a speedy trial, and, thus, trial counsel were not ineffective for failing to make this argument, either in the trial court or on appeal. As stated above, counsel cannot be ineffective for failing to make an argument that is without merit. See Noel, 342 Ark. 35, 26 S.W.3d 123; Sanford, 342 Ark. 22, 25 S.W.3d 414; Monts, 312 Ark. 547, 851 S.W.2d 432.
III. Counsel’s Lack of Preparation
For his final point on appeal, Appellant argues that the trial court erred in finding that counsel were not ineffective for lack of preparation during both the first trial and the resentencing. The basis of this argument is Appellant’s assertion that counsel did not have enough personal contact with him prior to both proceedings. Appellant asserts that if counsel had been more prepared and had visited him more often, they might have convinced him to testify on his own behalf and to call former employers and friends as witnesses. He also complains that counsel did not present testimony from any of his relatives during the resentencing.
Appellant does not state what particular witnesses or relevant facts counsel would have discovered had they adequately investigated and prepared the case. As such, his allegations are conclusory and will not provide a basis for postconviction relief. A bare allegation that there are witnesses that could have been called in the petitioner’s behalf will not support a claim of ineffective assistance of counsel. Nelson v. State, 344 Ark. 407, 39 S.W.3d 791 (2001) {per curiam). This court will not grant postconviction relief for ineffective assistance of counsel where the petitioner fails to show what the omitted testimony or other evidence was and how it would have changed the outcome. See Noel, 342 Ark. 35, 26 S.W.3d 123; Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995).
Appellant’s reliance on Williams v. Taylor, 529 U.S. 362 (2000), is misplaced. In that case, the Court held that counsel is obligated to conduct an investigation for the purpose of ascertaining mitigating evidence, and that 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. Thus, the Court’s holding did not change the law regarding claims of ineffective assistance of counsel, as set out in Strickland v. Washington, 466 U.S. 668 (1984). As with any other claim of ineffective assistance of counsel, a petitioner cannot succeed merely by alleging that counsel was not prepared or did not spend enough time on his case. Rather, he still must show what evidence or witnesses would have been discovered had counsel properly investigated the case and that, but for counsel’s lack of preparation, there is a reasonable probability that the outcome of his trial or sentence would have been different. Because Appellant has failed to make such a showing, we affirm the trial court’s denial of relief on this point.
Affirmed.
The record does not contain the pretrial hearing referred to by defense counsel. | [
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Annabelle Clinton Imber, Justice.
The appellants, St. Francis County, St. Francis County Election Commission, by and through its members, Elizabeth Smith (chairperson), Betty Proctor, Kevin Jones, Donnie Mooney; and Sandy Meurrier, all having been sued in their individual and official capacity, appeal an award of attorney’s fees entered by the St. Francis County Circuit Court in favor of the appellees, Robert Lewis Joshaway, Hudie Hardaway, Earnestine Jackson, Belinda G. Joshaway, Henrietta D. Ford-Scofield, Linda Lockhart, Vanessa D. Alexander, Tilda Holman, Eula M. Simmons, Mose Simmons, Cathy Tucker, Willie Hill, Emma Hardaway, Jessica Hardaway, Jessica Doolittle, Lashawn Lockhart, Dessie Mae Bobo, and Koleen C. Reynolds. The sole issue on appeal is whether the trial court erred in awarding attorney’s fees to the appellees in an action that was essentially an election contest, and that culminated in a final judgment declaring appellee Hudie Hardaway to be the winner of the Hughes school-board election held on September 15, 1998. We hold that the trial court erred in awarding attorney’s fees, and we reverse the trial court’s ruling and dismiss the appellees’ motion for attorney’s fees.
This case arises out of a dispute over the results of a school-board election held in the Hughes School District on September 15, 1998. Donnie Mooney, one of the appellants in this action, was certified by the St. Francis County Election Commission as the winner of position 7, an at-large position on the Hughes school board. Hudie Hardaway, the other candidate for the at-large position, along with Robert Lewis Joshaway and several other electors are the appellees in this action. Their complaint in this case alleged numerous voting irregularities in the school-board election and specifically challenged the Election Commission’s failure to count 91 ballots. The uncounted ballots were delivered to the election commissioners in a supply box. Elizabeth Smith, Chairperson of the Election Commission, testified at trial that she did not know why the 91 ballots were in the supply box and not in the ballot box. The Office of the Secretary of State advised the Election Commission that the ballots delivered in the supply box were not to be counted because they had not been locked up in the ballot box. According to the Secretary of State, it was the voter’s responsibility to put his or her individual ballot into the ballot box. Ultimately, the Election Commission made no determination as to why the 91 ballots remained outside the ballot box.
Following a bench trial on March 23, 1999, and a hearing on July 30, 1999, the trial court entered its order on September 17, 1999, and held that the ballots set aside by the Election Commission should be counted. In fact, the court counted the ballots, save three that were spoiled, and found that Hudie Hardaway prevailed in the September 15, 1998 school-board election by a vote of 239 to 238. The Election Commission was ordered “to immediately certify the name of Hudie Hardaway as the duly elected City of Hughes School Board member for [position] seven (7) to the Secretary of State.” On November 16, 2000, the trial court awarded attorney’s fees and expenses in the amount of $18,798.63 to the appellees’ attorney Sam Whitfield, and attorney’s fees in the sum of $2,000.00 to attorney Jimmie Wüson.
The long-standing rule in Arkansas is that attorney’s fees cannot be awarded unless specifically provided for by statute or rule. Furman v. Second Injury Fund, 336 Ark. 10, 983 S.W.2d 923 (1999); Arkansas Oklahoma Gas Corp. v. Waelder Oil & Gas, Inc., 332 Ark. 548, 966 S.W.2d 259 (1998); State ex rel. Bryant v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994). Arkansas follows the American Rule that attorney’s fees are not chargeable as costs in litigation unless permitted by statute. Lakeview School District No. 25 of Phillips County v. Huckabee, 340 Ark. 481, 10 S.W.3d 892 (2000); Love v. Smackover School Dist., 329 Ark. 4, 946 S.W.2d 676 (1997).
For their sole point on appeal, the appellants claim that the appellees are not entitled to attorney’s fees because they prevailed only on their arguments regarding violations of the Arkansas Election Code. See Ark. Code Ann. §§ 7-1-101, et seq. (Repl. 2000; Supp. 2001). The statutes governing elections in Arkansas do not provide for the award of attorney’s fees to the prevailing party in an election matter. The appellees, on the other hand, argue that they are entitled to attorney’s fees under the United States and Arkansas Constitutions, the Arkansas Civü Rights Act, Ark. Code Ann. § 16-123-105 (Supp. 2001), and the federal Voting Rights Act, 42 U.S.C. § 1971, et seq. (West 2001).
In reviewing an award of attorney’s fees, we first consider what statutory authority is relied upon by the trial court in its order awarding fees, as well as any statutes cited by the prevailing party in its motion for attorney’s fees. See Ark. R. Civ. P 54(e) (2001). In the instant case, however, the trial court’s order awarding fees does not state a statutory basis for the award. Moreover, the appellees’ motion for attorney’s fees fails to cite any statute or rule expressly providing for an award of attorney’s fees. Thus, in order to determine whether there is a statutory basis for an attorney’s fee award in this case, the nature of the action upon which, the trial court awarded relief must be ascertained by referring to the trial court’s original judgment.
We first note that the judgment is entitled “Final Judgment on Election Contest,” and the trial court declares at the outset that “[tjhis is essentially an election contest filed by [the appellees] on October 5, 1998.” The judgment begins with a factual discussion of some of the problems that occurred on the day of the school-board election. The trial court cites evidence that the polling place in the City of Hughes ran out of ballots on the afternoon of the election, and goes on to say that “[tjhis need for additional ballots is what triggered a large part of this controversy.” Specifically, Elizabeth Smith, Chairperson of the St. Francis County Election Commission, delivered additional ballots to Hughes before the ballots ran out. Later, she received a call that Hughes was out of ballots again, and, at that point, she directed poll workers to make copies of ballots. Approximately 100 copies of ballots were made and handed out, and some voters were told that the copied ballots had to be kept separate from originals. The trial court also cited evidence of complaints regarding people generally milling around the polling places and complaints that people whose names were not on the voter lists were attempting to vote. Furthermore, there was evidence of a dispute regarding electors being required to furnish a physical address before being allowed to vote. Sandy Meurrier, an election worker, testified that “the disorderly conduct was not limited by race. That there were blacks and whites causing problems.”
The final problem that arose during the election involved 91 ballots that were returned to the Election Commission in a supply box. Of the uncounted ballots, the trial court’s order determined that 15 were copies, 73 were originals, and 3 were spoiled. As previously mentioned, the trial court counted the 88 unspoiled ballots, added the respective votes to the vote totals previously certified by the Election Commission, and found that “Hudie Hardaway should be certified as the winner of the zone seven (7), Hughes, Arkansas school board election.”
Following this summary of the evidence, the trial court’s judgment begins a recitation of Arkansas election laws regarding the duties of election officers, policing requirements at election precincts, election-contest procedures, election illegalities and procedures for convening a grand jury investigation, and the number of printed ballots to be provided by election commissioners to each election precinct. See Ark. Code Ann. §§ 7-5-210, -801, -807; 7-7-303; 7-9-102 (Repl. 2000). The trial court also refers to several decisions by this court in election cases. See e.g., Binns v, Heck, 322 Ark. 277, 908 S.W.2d 328 (1995); Ashcraft v. Cox, 310 Ark. 703, 839 S.W.2d 219 (1992); Vandiver v. Washington County, 274 Ark. 561, 628 S.W.2d 1 (1982); On v. Carpenter, 222 Ark. 716, 262 S.W.2d 280 (1953); Dotson v. Ritchie, 211 Ark. 789, 202 S.W.2d 603 (1947); Black v. Jones, 208 Ark. 1011, 188 S.W.2d 626 (1945); Condren v. Gibbs, 94 Ark. 478, 127 S.W 731 (1910); Powell v. Holman, 50 Ark. 85, 6 S.W. 505 (1887).
The focus of the trial court’s inquiry in this action is ultimately articulated in the judgment by the following statement: “It is the duty of this Court to determine which candidate received the most legal votes.” In order to make that determination, the trial court points to our decisions in Ashcraft v. Cox, supra, and On v. Carpenter, supra, where we reiterated that election laws are merely directory after an election, and the courts do not favor disenfranchising a voter because of the misconduct of another person. These election-law principles are the basis of the trial court’s decision to tally the uncounted ballots and declare Hudie Hardaway the winner of the election, as reflected in the concluding paragraphs of the judgment:
There is no evidence before the Court that there was fraud involved in the 91 ballots at issue and the evidence shows that these are qualified voters. The Court will not invalidate votes based upon the failure of the election workers to insure that the 88 votes were properly challenged or placed in the ballot boxes and returned to the Courthouse. The Court finds that any errors were not the fault of the voters. The voters were qualified and eligible, they voted and should not be disenfranchised. The Court has personally examined and counted the 88 ballots.....
Therefore, the final election results are as follows:
Denise Mooney 209
+29
238 total
Hudie Hardaway 180
+58
239 total
Though the appellees claim entitlement to attorney’s fees under the Arkansas Civü Rights Act and the federal Voting Rights Act, the trial court in its judgment certifying Mr. Hardaway as the winner of the election makes no finding that either Act was violated. In fact, the judgment makes no mention at all of the Arkansas Civil Rights Act. The judgment does contain quotations from the federal Voting Rights Act, 42 U.S.C. § 1971(a)(1) and (a)(2)(B). However, the court never finds any violations of that Act. Similarly, the court does not find any violations of the United States or Arkansas Constitutions. Because the trial court’s judgment awarded no relief pursuant to the Arkansas Civil Rights Act or the federal Voting Rights Act, the appellees have not prevailed under those Acts and are therefore not entitled to attorney’s fees thereunder.
Viewing the trial court’s judgment as a whole, it is clear that the appellees’ lawsuit was essentially an election contest. The primary purpose of the action, as reflected in the relief awarded by the trial court, was to have Mr. Hardaway declared the winner of the school-board election. The court’s judgment focuses primarily on alleged errors in election procedure that resulted in ballots being kept outside the ballot box without being properly challenged under election law. Because Arkansas’s election laws provide the basis .for the trial court’s judgment in this election contest, we conclude that attorney’s fees are not warranted.
Attorney’s fee order reversed; appellees’ motion for attorney’s fees dismissed.
There were two other candidates for the zone 3 school board position, and Earnestine Jackson, one of the appellees in this action, was certified by the Election Commission as the winner of the zone 3 position.
The complaint sought redress for the wrongs alleged therein, “in so much as they are violative of Federal Constitution, Arkansas Constitution, Arkansas statutory provisions, and since all stem from a racial base are violate [sic] of Arkansas Civil Rights Act.”
The appellants’ notice of appeal from the trial court’s order awarding attorney’s fees was timely filed on November 28, 2000.
Arkansas has recognized exceptions to this rule, none of which are applicable here.
According to Ms. Smith, a person needed a physical address to prove he or she was an eligible voter within the correct zone.
This is also confirmed by the following statement in the appellees’ motion for attorney’s fees: “As grounds for their motion, [the appellees] demonstrate that they are the prevailing parties in the lawsuit, that they have accomplished the principal purposes of the law suit. ...” | [
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W.H. “Dub” Arnold, Chief Justice.
Appellant, Shawn Barbee, petitioned for review from an unpublished court of appeals decision affirming revocation of his parole and imposition of a six-year sentence of imprisonment. We granted the petition for review and now. reverse the court of appeals and the trial court.
On March 17, 1997, appellant pled guilty to three counts of negligent homicide and was sentenced to five years’ probation. One of the conditions of his probation was that his driver’s license was revoked for a period of three years. On January 10, 2000, the State filed a petition to revoke appellant’s probation, alleging that he had been driving during the period when his license was revoked. At the revocation hearing, appellant admitted that he had driven a vehicle, but he asserted that he had driven only after he was informed by the Chicot County Revenue Office that his driving record was clear and he was issued a valid driver’s license.
The facts upon which appellant’s probation was revoked are as follows. In December 1998, appellant went to the Chicot County Revenue Office to obtain an identification card in order to get his marriage license. The employee assisting him informed him that he had a “clean” driving record; therefore, he could only get a driver’s license, not an identification card. Because of the conditions of his probation, appellant asked the clerk to check his record again; she did so and informed him that his driving privileges were not suspended. The State of Arkansas then issued appellant a valid driver’s license. At the revocation hearing, the revenue office employee who issued appellant his driver’s license testified that the information in the computer could not be manipulated and that she had no choice but to issue a driver’s license to appellant because his license was not suspended.
On October 21, 1999, appellant was the driver of a car stopped by Lake Village Police Officer Jason Gregg, based on a report of a suspected drunken driver. Officer Gregg testified that he checked appellant’s license, determined that it was valid, found no alcoholic beverages in the vehicle, and allowed him to drive away. Nevertheless, the State filed its petition to revoke appellant’s probation based upon the fact that his driver’s license had been revoked.
The trial judge found that appellant had violated the terms of his probation, revoked the probation, and sentenced him to six years’ incarceration in the Arkansas Department of Correction. Appellant now appeals, arguing that the trial court was clearly erroneous in revoking his probation under Ark. Code Ann. § 5-4-309 (Supp. 1999), for driving a vehicle after the reinstatement of his driver’s license by the Arkansas Department of Finance and Administration.
I. Standard of Review'
When we grant a petition for review pursuant to Ark. Sup. Ct. R. 2-4, we treat the appeal as if it were filed in this court originally. Yancey v. State, 345 Ark. 103, 44 S.W.3d 315 (2001); Tucker v. Roberts-McNutt, Inc., 342 Ark. 511, 29 S.W.3d 706 (2000); Fowler v. State, 339 Ark. 207, 5 S.W.3d 10 (1999); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998). A trial court may revoke a defendant’s probation if it finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his probation. Ark. Code Ann. § 5-4-309(d). In probation-revocation proceedings, the State has the burden of proving that appellant violated the terms of his probation, as alleged in the revocation petition, by a preponderance of the evidence, and this Court will not reverse the trial court’s decision to revoke probation unless it is clearly against the preponderance of the evidence. Lemons v. State, 310 Ark. 631, 951 S.W.2d 559 (1997).
II. Miner v. State
In affirming the trial court, the Arkansas Court of Appeals cited Miner v. State, 342 Ark. 283, 27 S.W.3d 280 (2000), and declined to reach appellant’s' argument because he did not request a directed verdict and dismissal until after he was sentenced. In Miner, supra, this Court applied the requirements of Ark. R. Crim. P. 33.1 (2000) to revocation hearings so that motions for directed verdict and to dismiss must be requested after presentation of all the evidence, just as in non-jury trials. Appellant asks that this Court reconsider its holding in Miner; or, in the alternative, modify Miner so that it does not affect cases decided before April 26, 2000, the date of the Miner decision.
Appellant points out that Miner, supra, was decided after his revocation hearing. Appellant reminds the Court that revocations are not like “trials” specified in Ark. R. Crim. P. 33.1, where the rules of evidence do apply and the burden of proof is beyond a reasonable doubt. Indeed, revocation hearings are informal hearings, where rules of evidence are not followed and the burden of proof is by a preponderance of the evidence.
The State maintains that Miner should apply and that appellant’s argument was not preserved for appeal. The State asserts that Miner did not create new law, but simply interpreted Rule 33.1(b). Rule 33.1 had been amended on April 8, 1999, to require a defendant to make timely motions for directed verdict and dismissal in non-jury trials, just as in jury trials — at the end of the evidence. This Court, in a 5-2 decision on April 26, 2000, in the Miner case, interpreted this amendment to apply to revocation hearings, as well. Appellant’s revocation hearing was held on January 31, 2000, indeed after the effective date of the amendment of Rule 33.1, but before this Court interpreted same to be applicable to revocation hearings. We now reconsider our holding in Miner and find appellant’s argument persuasive.
We hold that our decision in Miner, supra, was incorrect; as such, we hold that Ark. R. Crim. P. 33.1 and the requirements thereof, pertaining to motions for dismissal and directed verdicts, do not apply to revocation hearings. Consequently, we hold that appellant’s motion for directed verdict made after sentencing was proper and did preserve his argument for appeal.
III. Failure to Comply with Terms of Probation
Appellant asserts that the basis for revocation in this case was not his fault, that the evidence showed that he had been an exemplary probationer, and that the trial court noted that he was “tremendously rehabilitated.” Citing Ark. Code Ann. § 5-4-309(d), he argues that he did not inexcusably fail to comply with a condition of his probation. We agree.
The term “inexcusable” is defined as “incapable of being excused or justified — Syn. unpardonable, unforgivable, intolerable.” Random House Compact Unabridged Dictionary 977 (1996). Certainly, the facts of this case are unique, and the resulting six-year prison term is unduly harsh. Appellant was a model probationer whom the trial court admitted was “tremendously rehabilitated.” He was incorrectly given a driver’s license by the State, although he only attempted to obtain an identification card in order to get a marriage license. Appellant relied upon the revenue office clerk’s information that his driver’s license was not suspended; and, although he did drive during the period of his probation, he received no traffic citations and committed no further criminal activity. He complied with every other term of his probation. Surely, his reliance upon the State revenue office that he was allowed to have a driver’s license, after he asked the clerk to check again to be sure, would constitute forgivable, pardonable, excusable behavior for his failure to strictly comply with the terms of his probation. As such, given the unique facts of this case, we reverse and remand the case to the trial court, thereby reversing and remanding the court of appeals’ opinion.
Reversed and remanded.
■ Glaze, Brown, and Imber, JJ., dissent. | [
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Per Curiam.
A jury found petitioner Anthony D. White guilty of possession of cocaine, simultaneous possession of drugs and firearms, and possession of a firearm by a felon and sentenced him to an aggregate term of 1320 months’ imprisonment in the Arkansas Department of Correction. The Arkansas Court of Appeals affirmed. White v. State, CACR 06-799 (Ark. Ct. App. Apr. 25, 2007). Petitioner timely filed in the trial court a petition for postconviction relief under Ark. R. Crim. P. 37.1, which was denied by order entered on August 20, 2007.
Following the entry of that order, petitioner filed in the trial court a motion to modify, which requested rehearing of certain issues despite the prohibition in Ark. R. Crim. P. 37.2(d) against consideration of such a request. The trial court denied that motion, and petitioner filed a notice of appeal for the order entered on August 20, 2007. Each of these documents was marked as filed on September 25, 2007.
Petitioner filed in this court a motion for belated appeal, seeking permission to proceed with his appeal. We remanded for the trial court to take evidence to settle the record as to the filing date of the notice of appeal. White v. State, CR 08-45 (Ark. Feb. 28, 2007) (per curiam). The trial court conducted a hearing, and the record of that hearing, including the trial court’s findings, has now been provided on remand.
The trial court was instructed that petitioner, as the party challenging the file mark, carried the burden to show by a preponderance of evidence that the filing date affixed was not correct. See State v. Thurman, 305 Ark. 448-A, 809 S.W.2d 821 (1991) (per curiam). The court conducted the hearing without petitioner, however, relying upon information from a deputy court clerk and the court’s own recollection of events. Because that fact was undisputed, the trial court accepted as true petitioner’s allegation that the circuit clerk received the notice of appeal of the August 20, 2007, order on September 12, 2007.
The court found that the clerk delayed filing the documents until September 25, 2007, but concluded that there was no clerical error. The court determined that, without some notice from the defendant concerning the urgency of the request, the delay was reasonable because the clerk was following procedure in not filing the documents until there was a ruling on a motion to proceed in forma pauperis included with petitioner’s documents. The trial court indicated that none of the documents would be filed if the court’s determination on the motion to proceed in forma pauperis was not favorable, noting that the motion to proceed in forma pauperis was approved and an order was entered setting an initial partial filing fee.
Petitioner’s motion to proceed in forma pauperis and the referenced orders concerning it are not included in the partial record. We note first that a partial filing fee under Ark. Code Ann. § 16-68-606 (Repl. 2005) is not applicable, as Act 340 of 1997 applies only to civil cases. While proceedings on a Rule 37.1 petition may be civil in nature for some purposes, those cases are brought under criminal rules of procedure and are criminal cases for purposes of application of the act. See Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003).
Moreover, a grant of the motion to proceed in forma pauperis would seem inconsistent with approval of a partial filing fee under the act. Under Ark. Code Ann. § 16-68-603 (Repl. 2005), an indigent incarcerated person is not prohibited from filing suit and Ark. Code Ann. § 16-68-604 (Repl. 2005) permits authorization of a suit without payment of fees and costs where an appropriate affidavit is filed. The court should respond to a motion to proceed in forma pauperis with a determination that the movant is either a pauper or that he is not. In civil proceedings, the court may waive the fees for a movant who is determined to be a pauper. In criminal proceedings, a determination that the movant is indigent requires waiver, not reduction, of the fee.
Whether the appellant is determined to be a pauper or not, and whether the appellant brings the matter to the clerk’s attention, the circuit clerk may not decline to promptly file a notice of appeal concerning a denial of postconviction relief under Rule 37.1. As noted in our opinion remanding, a petitioner has the right to appeal a ruling on a petition for postconviction relief. See Scott v. State, 281 Ark. 436, 664 S.W.2d 475 (1984) (per curiam); see also Ark. R. Crim. P. 37.3(b). To the extent that a right of appeal is granted, equal protection applies. McDonald v. State, 356 Ark. 106, 111, 146 S.W.3d 883, 888 (2004) (citing Gilliam v. State, 305 Ark. 438, 808 S.W.2d 738 (1991)).
An appellant must file a notice of appeal within thirty days of the date the order was entered in order to comply with Ark. R. App. P. — Civ. 4(a). While an appellant may receive an extension of time in which to lodge the transcript in this court under Ark. R. App. P.-Civ. 5, as applied through Ark. R. App. P.-Crim. 4(a), our rules of procedure do not permit the circuit court to grant an extension of time for filing a notice of appeal. To delay filing of the notice of appeal because a request has been submitted by the appellant to proceed in forma pauperis would in effect deny indigent appellants, and those who may in good faith believe that they are indigent, the right to appeal. We hold that the circuit clerk erred in failing to file the notice of appeal on the day received, September 12, 2007.
Because petitioner’s notice of appeal was timely but for this clerical error, he has stated good cause to grant the motion for belated appeal. We issue a writ of certiorari and direct our clerk to lodge the partial record. The circuit clerk is directed to prepare the record as it pertains to the proceeding on the Rule 37.1 petition in accord with the notice of appeal and provide it to this court within thirty days of the date of this opinion. Our clerk shall set a briefing schedule and proceed with the appeal upon the return of the writ.
Motion granted; writ of certiorari issued. | [
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Robert L. Brown, Justice.
Appellant John Leelyn Seely appeals his judgment of conviction for rape of his three-year-old daughter, for which he received a sentence of imprisonment as a habitual offender for a term of twenty years. He asserts a violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution due to the hearsay testimony of two witnesses against him. We affirm.
In September of 2005, Seely was living with his girlfriend, Suzette Barnes, and the couple’s three-year-old daughter, J.B. On September 23, 2005, J.B. approached Barnes, complaining that her “booty” was hurting. Barnes explained that “booty” was the term that J.B. used to describe her vagina. Barnes cleaned J.B. with a washcloth and placed some Vaseline on the area, which appeared irritated.
About an hour later, J.B. again approached Barnes with complaints of pain, and Barnes applied more Vaseline. At bedtime, J.B. continued complaining of pain and asked to go to the doctor. This raised Barnes’s concern, because J.B. was usually afraid to go to the doctor. Barnes said that she would take J.B. to the doctor if she was still in pain after school the next day. Barnes then asked J.B. if she could tell Barnes why her booty hurt. According to Barnes, J.B. responded, “Yes. My daddy did it.” Barnes asked her what she meant and J.B. responded that her daddy had put his fingers in her booty and “dug” in her booty.
The same night, Barnes took J.B. to Arkansas Children’s Hospital. Before J.B. was examined by a doctor, she was interviewed by Trish Smith, a social worker whose duties included interviewing children who were brought in for physical or sexual abuse. Barnes was present during the interview. After ascertaining that J.B. used the word “booty” to refer to her vagina, Smith asked J.B. if she knew why she was at the hospital. J.B. responded that her daddy put his finger in her booty and pointed to her front genital area. Smith then asked whether her father had told her anything, to which J.B. responded that her father had said that he would “whip her ass” if she told anyone what had happened.
On October 26, 2005, Seely was charged with rape under Arkansas Code Annotated § 5-14-103 (Supp. 2005), for having engaged in sexual intercourse or deviate sexual activity with a minor who was less than fourteen years old. Before trial, on January 10, 2006, Seely moved for an in camera hearing to determine the competency ofJ.B., who was three years old at that time, to testify at trial. A hearing subsequently was held at which J.B., who was then four years old, was found incompetent to testify and therefore unavailable for trial under our Child Hearsay Rule. See Ark. R. Evid. 804(b)(7) (2006).
At the same hearing, the court examined (1) whether, under Rule 804(b)(7), the requirements had been met to establish an exception to the hearsay rule which would allow Barnes and Smith to testify about the statements J.B. made to them and (2) whether Seely’s Sixth Amendment rights would be violated by allowing such testimony. At the hearing, Barnes testified regarding the events leading to her takingJ.B. to the emergency room, as already recounted above, and Smith testified as to the statements made to her by J.B.
Smith also testified at the hearing about the purpose of her interview with J.B. She stated that the main objective of her interview with J.B. was to determine whether a physical exam should be conducted and, if so, what type of physical exam. The amount of time that had expired since the suspected abuse was important, she said, because examinations are not generally conducted at the emergency room if more than seventy-two hours have expired. Smith further testified that she is a mandated child-abuse reporter and that she has testified at more than fifty trials during the past twenty years. The circuit court found that both Barnes’s and Smith’s statements were admissible at trial.
A jury trial was held on July 27, 2006. At trial, both Barnes and Smith testified as to J.B.’s statements to them regarding the rape. Also testifying was Dr. Maria Esquivel, a pediatrician at Arkansas Children’s Hospital who examined J.B. on September 23, 2005. Dr. Esquivel testified that J.B. had injuries to her vagina that were consistent with penetration by a finger or other foreign object within two or three days before the examination. Dr. Esquivel testified, in addition, that the injuries could have been caused in some other way.
Seely testified in his own defense, as the defense’s sole witness during the guilt phase of the trial. Seely testified that he had never sexually abused his daughter. He also testified that, at the time of the incident, Barnes and he were more like .roommates than a couple and that a few days before Barnes took J.B. to the emergency room, he had lost his job, which caused Barnes to be angry with him.
The jury found Seely guilty of rape and sentenced him to imprisonment for a term of twenty years. Seely appealed to the Arkansas Court of Appeals. The court of appeals issued an opinion holding that the circuit court erroneously allowed Smith to testify about J.B.’s hearsay statements. Seely v. State, 100 Ark. App. 33, 263 S.W.3d 559 (2007). As a result, the court of appeals reversed Seely’s conviction and remanded the case to the circuit court for a new trial. This court then granted the State’s petition for review. Because this case is before us pursuant to our grant of a petition for review, we consider the matter as if it had originally been filed in this court. Van Wagner v. Wal-Mart Stores, Inc., 368 Ark. 606, 608, 249 S.W.3d 123, 124 (2007).
Seely contends as his sole issue on appeal that J.B.’s statements to Barnes and Smith were testimonial hearsay and that by allowing Barnes and Smith to testify about these statements, the circuit court violated his Sixth Amendment right to confront and cross-examine all witnesses against him. In support of this argument, Seely notes that on the night in question, J.B. was playing before and after making the statements implicating him to Barnes and that, therefore, no bona fide emergency existed.
Seely also claims that no emergency existed in connection with J.B.’s statements to Smith. Seely points out that Smith is a mandated child-abuse reporter, who shares information with the Child Abuse Hotline, police officers, and the prosecuting attorney. Seely further notes that Smith regularly testifies in court in child-molestation cases. Smith’s interview with J.B., he argues, was not for medical purposes. If it had been, Seely states, Smith would not have been concerned about the identity of the perpetrator but only with the act that had caused the injury. Nor, Seely notes, does the record indicate that J.B. was upset or under stress during the interview with Smith.
We initially observe that Seely’s appeal raises a question of constitutional interpretation, which is subject to this court’s de novo review. Navarro v. State, 371 Ark. 179, 193, 264 S.W.3d 530, 540 (2007). In order for hearsay statements to be admissible against a defendant at a criminal trial, two separate requirements must be met. See Crawford v. Washington, 541 U.S. 36, 60 (2004) (noting statements that fall under firmly rooted hearsay exceptions are not exempt from scrutiny under the Confrontation Clause). First, an exception to the general rule prohibiting hearsay must be demonstrated. Second, the admission of the hearsay cannot violate the defendant’s Sixth Amendment right “to be confronted with the witnesses against him.” U.S. Const, amend. 6.
In 1992, this court adopted Rule 804(b)(7) of the Arkansas Rules of Evidence, thereby creating the child-hearsay exception to the rule excluding hearsay. In re Addition to Arkansas Rules of Evidence, 309 Ark. 628, 630-31 (1992). In the case at hand, Seely has not challenged the circuit court’s finding that the requirements of the unavailable-child exception to the rule excluding hearsay were met. Rule 804(b)(7) provides as follows:
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(7) Child Hearsay in Criminal Cases. A statement made by a child under the age often (10) years concerning any type ofsexual offense against that child, where the Confrontation Clause of the Sixth Amendment of the United States is applicable, provided:
- (A) The trial court conducts a hearing outside the presence of the jury, and, with the evidentiary presumption that the statement is unreliable and inadmissible, finds that the statement offered possesses sufficient guarantees of trustworthiness that the truthfulness of the child’s statement is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility. The trial court may employ any factor it deems appropriate including, but not limited to those listed below, in deciding whether the statement is sufficiently trustworthy.
1. The spontaneity of the statement.
2. The lack of time to fabricate.
3. The consistency and repetition of the statement and whether the child has recanted the statement.
4. The mental state of the child.
5. The competency of the child to testify.
6. The child’s use of terminology unexpected of a child of similar age.
7. The lack of a motive by the child to fabricate the statement.
8. The lack of bias by the child.
9. Whether it is an embarrassing event the child would not normally relate.
10. The credibility of the person testifying to the statement.
11. Suggestiveness created by leading questions.
■ 12. Whether an adult with custody or control of the child may bear a grudge against the accused offender, and may attempt to coach the child into making false charges.
(B) The proponent of the statement gives the adverse party reasonable notice of his intention to offer the statement and the particulars of the statement.
(C) This section shall not be construed to limit the admission of an offered statement under any other hearsay exception or applicable rule of evidence.
Until 2004, Rule 804(b)(7)’s requirement that a child’s hearsay statement “possess]] sufficient guarantees of trustworthiness,” was in line with the United States Supreme Court’s Sixth Amendment jurisprudence. The controlling law at that time was defined by Ohio v. Roberts, which said:
[Wjhen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate indicia of reliability. Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.
448 U.S. 56, 66 (1980), abrogated by Crawford v. Washington, 541 U.S. 36 (2004) (quotations and citations omitted).
In applying the Roberts standard to hearsay regarding the statements made to a doctor by a child-abuse victim who was three years old at the time of trial, the Supreme Court noted that “the particularized guarantees of trustworthiness required for admission under the Confrontation Clause must ... be drawn from the totality of circumstances that surround the making of the statement and that render the declarant particularly worthy of belief. . . . [E]vidence . . . must... be so trustworthy that adversarial testing would add little to its reliability.” Idaho v. Wright, 497 U.S. 805, 820-21 (1990) (quotation omitted).
In the Roberts/Wright era, the Supreme Court also emphasized the importance of the State’s interest in protecting victims of child abuse, holding that where a court made a finding that a child witness would be traumatized by testifying in the presence of the defendant, a procedure allowing a child to testify via closed-circuit television did not violate the Confrontation Clause. Maryland v. Craig, 497 U.S. 836, 841-42, 857 (1990). In so holding, the Court noted that, “our precedents establish that the Confrontation Clause reflects a preference for face-to-face confrontation at trial, a preference that must occasionally give way to considerations of public policy and the necessities of the case.” Id. at 849 (citations and quotations omitted). The Court further noted that “a State’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers in court.” Id. at 853.
In 2004, the Roberts /Wright era came to an end with the Supreme Court’s decision in Crawford v. Washington, in which the Court found that “amorphous notions of‘reliability’ ” are not the touchstone of Confrontation Clause analysis. Crawford, 541 U.S. at 61. Rather, the Court found that the Confrontation Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Id.
Under Crawford, the analysis of whether the hearsay statement of a witness who does not appear at trial is admissible turns on whether the statement is testimonial. Id. at 53-54, 68. The Court said:
The text of the Confrontation Clause reflects this focus [on testimonial statements]. It applies to “witnesses” against the accused — in other words, those who “bear testimony.” 2 N. Webster, An American Dictionary of the English Language (1828). “Testimony,” in turn, is typically “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Ibid. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.
Id. at 51. If a statement is testimonial, then it cannot be admitted unless the witness is unavailable to testify and the defendant had a prior opportunity to cross-examine the witness. Id. at 53-54. In Crawford, the Court said that nontestimonial statements, if not entirely outside of the scope of the Confrontation Clause, are at least not “its primary object.” Id. at 53. In a later case, the Court held that, while nontestimonial hearsay is “subject to traditional limitations upon hearsay evidence,” it “is not subject to the Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821 (2006).
In Crawford, the Court “le[ft] for another day any effort to spell out a comprehensive definition of‘testimonial.’ ” 541 U.S. at 68. “Whatever else the term covers,” the Court noted, “it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id. Since Crawford, the Court has provided only limited guidance as to the definition of testimonial, most of which is specific to the context of statements made to police officers. See Davis, 547 U.S. 813.
In holding that a domestic-violence victim’s statements over the telephone to a 911 operator were nontestimonial, the Court in Davis “ conclude [d] . . . that the circumstances of [the victim’s] interrogation objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency. Id. at 828 (emphasis added). Four factors influenced the Court’s decision. First, the victim was “speaking about events as they were actually happening, rather than describing past events.” Id. at 827 (quotation omitted). Second, the victim “was facing an ongoing emergency.” Id. Third, “the nature of what was asked and answered . . . viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn ... what had happened in the past.” Id. Fourth, the interview took place in an informal setting, with the victim making “frantic answers . . . over the phone, in an environment that was not tranquil, or even . . . safe.” Id. “No ‘witness,’ ” the Court noted, “goes into court to proclaim an emergency and seek help.” Id.
The Court contrasted the situation in Davis with the situation in Hammon v. Indiana, No. 05-5705, a case that had been consolidated with Davis for the purpose of appeal, and found that the statement of another victim of domestic violence to police officers who arrived after an attack was complete when “there was no immediate threat to her person.” The statement was testimonial because “the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime.” Id. at 830.
The Davis Court summarized as follows:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Id. at 822.
The Davis Court also indicated that, while important State interests such as the protection of child-abuse victims may justify denying a defendant the right to confront his or her accuser face-to-face, Craig, 497 U.S. at 853, they cannot justify denying a defendant the right to confront his or her accuser through cross-examination, see Davis, 547 U.S. at 833 (acknowledging that domestic-abuse victims are “notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial,” but explaining that “[w]e may not. . . vitiate constitutional guarantees when they have the effect of allowing the guilty to go free”).
In applying Crawford and Davis to the instant case, this court is faced with the task of determining what types of statements are testimonial. In its discussion of the historical abuses that led to the Framers’ adoption of the Confrontation Clause, Crawford indicates that government involvement in procuring the hearsay statement is a factor to be considered. 511 U.S. at 43-50, 53. Crawford also indicates that the formality of the situation in which the statement was made may be an important consideration. Id. at 51.
In the context of police interrogations and statements made to other government officials, the four factors outlined in Davis give clear guidance as to what should be considered in determining whether a statement is nontestimonial. These factors, however, have limited applicability to statements that are not made to a government official. For example, the Court has made it clear that a casual statement made to an acquaintance can be nontestimonial, despite the fact no emergency exists. See Davis, 547 U.S. at 825 (giving examples of “clearly nontestimonial” statements made to nongovernment officials in nonemergency situations). Therefore, the Court appears to draw a clear distinction between statements made to police officers or other governmental officials, which are generally testimonial, and statements made to people who are not governmental officials.
Davis does, however, announce a “primary-purpose test” that can be modified for use outside the context of police interrogations: statements are testimonial when “the circumstances objectively indicate that . . . the primary purpose” of the statement “is to establish or prove past events potentially relevant to later criminal prosecution.” Id. at 822. Moreover, there are indications that the court intends the focus to be on the primary purpose of the person making the statement, rather than the primary purpose of the listener or questioner. See id. at 825 (noting that “statements made unwittingly to a Government informant” are “clearly non-testimonial”); Id. at n.l (“[I]t is in the final analysis the declarant’s statements, not the interrogator’s questions, that the Confrontation Clause requires us to evaluate.”). In examples of potential testimonial hearsay noted by the Court in Crawford, two focus on whether the circumstances surrounding a statement “would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” 541 U.S. 51-52. Nevertheless, Davis makes it clear that, particularly when a governmental agent or a stand-in for a governmental agent is involved in questioning, the primary purpose of the questioner may be relevant in determining whether a statement was given “under circumstances objectively indicating that,. . the primary purpose” of the statement was “to establish or prove past events potentially relevant to later criminal prosecution.” 547 U.S. at 822.
We conclude that in light of Crawford and Davis, both the primary purpose of the person making the statement and the primary purpose of the person asking the questions may be relevant to a confrontation-clause analysis.
Several lower courts that have examined the issue in the wake of Crawford and Davis have found a distinction between statements made to government officials and statements made to nonofficials. See, e.g., State v. Contreras, 979 So. 2d 896, 903-04 (Fla. 2008). Such courts have frequently held that statements to government officials are judged by the “primary-purpose test” under which a statement is testimonial if it is made for the primary purpose of creating evidence, while statements to nonofficials are judged under the “objective-witness test” and are testimonial only if an objective witness would reasonably believe that the statement would be available for use at a later trial. Contreras, 979 So. 2d at 903-04; State v. Siler, 116 Ohio St. 3d 39, 44-45, 876 N.E.2d 534, 539-40 (2007) (distinguishing between the “primary-purpose test” applied to statements made to law-enforcement officers and the “objective-witness test” applied to statements “made to medical professionals at a medical facility for the primary purpose of receiving proper medical treatment”).
At least one court, however, has recognized that applying the objective-witness test to a young child is “unworkable ...[,] strained, awkward, and easily capable of abuse.” State v. Spencer, 339 Mont. 227, 232-33, 169 P.3d 384, 389-90 (2007); see also State v. Henderson, 384 Kan. 267, 160 P.3d 776 (2007) (“A young victim’s awareness, or lack thereof, that her statement would be used to prosecute, is not dispositive of whether her statement is testimonial. Rather, it is but one factor to consider in light of Davis’ guidance after Crawford. Until we receive further guidance from the United States Supreme Court, our test is an objective, totality of the circumstances test to determine the primary purpose of the interview, as discussed and seemingly applied in Davis.”).
We conclude that a more appropriate test should recognize the distinction between statements to government officials and statements to nonofficials. Moreover, the test should remain focused on the circumstances surrounding the statement and whether those circumstances objectively indicate that the primary purpose of the statement is to prove events relevant to criminal prosecution. Where a statement is made to a government official, it is presumptively testimonial, but the statement can be shown to be nontestimonial where the primary purpose of the statement is to obtain assistance in an emergency. See Davis, 547 U.S. 813. Where a statement is made to a nonofficial, it is presumptively nontestimonial, but can be shown to be testimonial if the primary purpose of the statement is to create evidence for use in court. See, e.g., State v. Spencer, 339 Mont. 227, 230-31, 169 P.3d 384, 388 (2007) (“In general, a declarant’s statements are presumed testimonial if they are knowingly made to a police officer or government agent. A statement is presumed non-testimonial, however, if the declarant had objective reason to believe that the statement served only to avert or mitigate an imminent or immediate danger and the agent receiving the statement lacked intent to create evidence. A statement made to a nongovernmental agent is non-testimonial unless the declarant had clear reason to believe that the statement would be used in court as substantive evidence against the defendant.”) (citations and quotations omitted).
Applying this objective primary-purpose standard to the instant case, it is clear that the statements made by J.B. to her mother, Suzette Barnes, were nontestimonial. Barnes was acting as J.B.’s caretaker and not as a government agent. She questioned J.B. about the cause of her injuries with the primary purposes of ascertaining the nature of her injuries, providing comfort, and determining whether medical intervention was necessary. Moreover, the statement took place in an informal setting where Barnes was preparing for J.B. to go to bed in her own home.
Other courts that have addressed this issue have concluded that statements made to parents and caretakers are not generally testimonial in nature where a parent is not specifically questioning a child for the purpose of obtaining evidence for use in court. See, e.g., Bishop v. State, 982 So. 2d 371, 375 (2008) (“[The child’s mother] is not a police officer, and was not working in conjunction with law enforcement for the purposes of prosecuting Bishop when C.C. disclosed to her that Bishop had been sexually abusing her. Moreover, the record reflects that statements made by C.C. to her mother were completely spontaneous.”); State v. Ladner, 373 S.C. 103, 114, 644 S.E.2d 684, 689-90 (2007) (holding that a child’s statement to her caretaker about the cause of the blood found in her diaper was not testimonial where “[the caretaker’s] questions, as well as the victim’s responses, were not designed to implicate the criminal assailant, but to ascertain the nature of the child’s injury”). As other courts have noted, “simply because ‘parents turn over information about crimes to law enforcement authorities does not transform their interactions with their children into police investigations.’ ” Id. at 115, 644 S.E.2d at 690 (quoting Purvis v. State, 829 N.E.2d 572 (Ind. Ct. App. 2005)). Moreover, J.B. clearly approached Barnes seeking relief from the pain that she was experiencing, not to report her father’s actions. We hold that J.B.’s statements to her mother were nontestimonial.
We turn next to the statements made by J.B. to the social worker, Trish Smith. As a preliminary matter, we observe that Smith had a duty to report child abuse to the Child Abuse Hotline. We conclude, though, that this duty to report, by itself, did not render all statements made by J.B. to her testimonial. See U.S. v. Peneaux, 432 F.3d 882, 894 (8th Cir. 2005); Spencer, 339 Mont. at 231, 169 P.3d at 388-89 (“In addition to foster parents and social workers, the statute [Mont. Code Ann. § 41-3-201] also requires reporting by physicians, residents, interns, and other hospital staff; nurses, osteopaths, chiropractors, podiatrists, medical examiners, coroners, dentists, optometrists, and other health or mental health professionals; religious healers; school teachers and school employees; day-care facility staff; and, clergy members, among others. There is no indication, however, that the Legislature intended to deputize this litany of professionals and individuals into law enforcement, and we refuse to attach that significance to the duty to report.”) (citations omitted).
The question of whether Smith was acting as a government agent must turn on the primary purpose of her interview with J.B. If the primary purpose of the interview was to gather evidence for potential use in a subsequent prosecution, Smith was acting as a government agent. See State v. Justus, 305 S.W.3d 872, 880 (Mo. 2006) (“Although [the social worker] is not a government worker, she was acting as a government agent when she interviewed S.J. . . . While there is no doubt that one purpose of the interrogations was to enable assistance to the child, the circumstances indicate that their primary purpose was to establish or prove past events potentially relevant to later criminal prosecution.”)
Given Smith’s prior testimony in child-abuse cases and her provision of information to police officers and prosecutors, it seems clear that she would have anticipated during her interview with J.B. that the information she gathered might be used in a subsequent prosecution. It does not necessarily follow, though, that the primary purpose of Smith’s interview with J.B. was to collect evidence rather than to provide medical treatment. J.B. was experiencing pain and was about to be given a medical examination. Smith testified that her interview with J.B. was primarily for the purpose of defining the scope of that medical examination.
Furthermore, the proper treatment ofJ.B. included ensuring her continued safety. The identity of anyone who may have harmed J.B. was relevant to ensuring her safety after she left the hospital. See Peneaux, 432 F.3d at 894 (“T.P.’s statements identifying Peneaux as the abuser are of the type reasonably relied upon by a physician for treatment or diagnosis. Due to the nature of child sexual abuse, a doctor must be able to identify and treat not only physical injury, but also the emotional and psychological problems that typically accompany sexual abuse by a family member. Moreover, such a statement may be relevant to prevent future occurrences of abuse and to the medical safety of the child. Dr. Strong explained that identification of the abuser is a matter of great concern because if the person who brought the child to the clinic is the abuser, the child should not leave with that individual.”) (citations omitted).
Nor did a police officer or other law-enforcement official instigate, observe, or participate in the J.B.-Smith interview. See State v. Hooper, 145 Idaho 139, 141, 176 P.3d 911, 913 (2007) (finding a child’s statement to a doctor to be testimonial where (1) the police arranged a forensic exam and observed the interview via a closed circuit system and (2) a tape of the interview was immediately placed with other evidence in a police storage); Contreras, 979 So. 2d at 905 (“[T]he facts of the instant case show that the coordinator of the Child Protection Team, while working with the county sheriff, took a statement from the victim regarding the allegations of sexual molestation. . . . While the law enforcement officer was not in the room during the interview, he was connected electronically to the CPT coordinator in order to suggest questions. In light of the police presence and the electronic connection, we conclude that the CPT coordinator was serving as a police proxy in this interview. This is reinforced by the statutory connection of the CPT to such investigations and prosecutions. . . . Moreover, the primary, if not the sole, purpose of the CPT interview was to investigate whether the crime of child sexual abuse had occurred, and to establish facts potentially relevant to a later criminal prosecution.”) (citations omitted).
J.B. was a very young child who was in pain and who wanted to see a doctor. There is no indication that J.B. was told that the interview was taking place because police officers needed to know what had happened to her. Compare State v. Bentley, 739 N.W.2d 296, 299 (Iowa 2007), cert. denied, 128 S. Ct. 1655 (2008) (holding that a child’s statement to a medical professional was testimonial where the child was told that the police were listening to the interview and was implored to continue talking because it was important for the police to know what had happened), with State v. Krasky, 736 N.W.2d 636, 641-42 (Minn. 2007), cert. denied, 128 S. Ct. 1223 (2008) (holding that a child’s statement to a medical professional was nontestimonial where the child was told that the interview was for the purpose of assessing the child’s health).
We hold that J.B.’s statements to Trish Smith were nontestimonial based on the fact that, using an objective standard, the primary purpose of the interview was medical treatment. Accordingly, we affirm the judgment of conviction on this point and reverse the court of appeals.
Circuit court affirmed. Court of appeals affirmed in part and reversed in part.
Because of his three prior felony convictions for attempt to manufacture a controlled substance, residential burglary, and possession of drug paraphernalia, Seely was sentenced as a habitual offender.
In 1965, the United States Supreme Court held that the Confrontation Clause of the Sixth Amendment is “a fundamental right... made obligatory on the States by the Fourteenth Amendment.” Pointer v. Texas, 380 U.S. 400, 403 (1965).
The particular procedures at issue in Craig called for defense counsel to be (1) present in the room with the child during the testimony, (2) able to object and conduct cross-examination, and (3) in communication with the defendant. Craig, 497 U.S. at 842 n.l. | [
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PER CURIAM.
On June 6, 2007, Petitioner M.H. was found guilty of rape and adjudicated delinquent in the Circuit Court of Franklin County, Arkansas. Petitioner was represented at trial by Franklin County Public Defender, William M. Pearson. No appeal was taken from the judgment, and Petitioner now seeks to proceed with a belated appeal pursuant to Rule 2(e) of the Arkansas Rules of Appellate Procedure-Criminal, which permits a belated appeal in some instances.
Petitioner’s parents claim that they were neither advised of their constitutional right to appeal the decision of the circuit court, nor were they advised of any time constraints for filing a notice of appeal. Petitioner’s parents assert that when they inquired about an appeal, Mr. Pearson stated he would not be filing an appeal. Petitioner’s parents subsequently retained private counsel to advise them of their rights on appeal, but the deadline for filing an appeal under Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure-Criminal had passed. Petitioner, through private counsel, now brings this motion for belated appeal and motion for anonymity.
Under Ark. R. App. P.-Crim. 16, Mr. Pearson is required to represent Petitioner until he has been relieved as counsel by the trial court or by a state appellate court. Specifically, Rule 16(a) provides as follows:
(a) Trial counsel, whether retained or court-appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court orArkansas Court ofAppeals, unless permitted by the trial court or the appellate court to withdraw in the interest of justice or for other sufficient cause. After the notice of appeal of a judgment of conviction has been filed, the appellate court shall have exclusive jurisdiction to reheve counsel and appoint new counsel.
A defendant may waive his right to appeal by his failure to inform counsel of his desire to appeal within the thirty-day period allowed for filing a notice of appeal under Ark. R. App. P.-Crim. 2(a)(4); Jones v. State, 294 Ark. 659, 748 S.W.2d 117 (1988) (per curiam).
In the present case, there is no order in the record relieving Mr. Pearson as counsel. Nor is there evidence that Petitioner requested Mr. Pearson to file an appeal within the required time period. Therefore, proper disposition of the motion for belated appeal in this case requires findings of fact which must be made by the circuit court.
We remand this matter for an evidentiary hearing on the issue of whether Petitioner informed Mr. Pearson of the desire for an appeal within the time period allowed for filing a notice of appeal. The circuit court is directed to enter Findings of Fact and Conclusions of Law within ninety days and submit the findings and conclusions to this court with the transcript of the evidentiary hearing.
Remanded to the circuit court for evidentiary hearing. | [
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Annbabelle Clinton Imber, Justice.
The instant appeal requires this court to analyze the issue of whether a lis pendens filed in conjunction with a creditor’s foreclosure action serves to bar the future claim of a materialman when its materialman’s lien is filed with the county recorder’s office after the lis pendens is filed, and the foreclosure action proceeds to final judgment without joinder of the materialman as a party to the action. In light of the facts in this case, we conclude that it does.
On August 13, 2004, Coleman Construction, LLC, granted Appellee Regions Bank a note and construction mortgage on the property described as
Lot 51, Pebble Beach Woods Addition to the City of Little Rock, Pulaski County, Arkansas. Also known as 2600 Valley Park Drive, Little Rock, Arkansas.
Within a few months, Coleman defaulted on the loan by ceasing construction on the property.
On January 4, 2005, Regions filed a complaint of foreclosure in the Pulaski County Circuit Court and a lis pendens in the county recorder’s office. The complaint listed Coleman Homes, LLC, and Stephen G. Coleman and Debra J. Coleman, individually, as defendants but did not list any other parties. On March 7, 2005, the circuit court entered a foreclosure decree in favor of Regions, and at the Commissioner’s sale on June 13, 2005, Regions purchased the property. Subsequently, Regions sold the property to Appellee Cain Construction, Inc., and obtained a construction mortgage on the property.
Meanwhile, on January 25, 2005, Appellant National Home Centers, Inc., a materials supplier for Coleman, filed a material-man’s lien on the same property. Over a year later, in April 2006, National Home Centers filed a complaint in foreclosure against the property. The complaint listed as defendants Coleman Homes, LLC, the Colemans individually, Cain Construction, Inc., Newoods, Inc., and Regions Bank.
In response, Regions and Cain filed a joint motion for summary judgment. In the motion, they alleged that National Home Centers’s materialman’s lien was filed after the lis pendens in Regions’s foreclosure action, and, therefore the materialman’s lien was subject to the outcome of that litigation, and National Home Centers was barred from bringing its own foreclosure action. National Home Centers filed a cross-motion for summary judgment and made several arguments in rebuttal to Regions’s motion.
After a hearing on the motions, the circuit court entered an order granting summary judgment in favor of Regions and Cain and denying National Home Centers’s summary-judgment motion. The order also granted National Home Centers a default judgment against Coleman.
National Home Centers filed an initial appeal from that order, but this court remanded the case for further settling of the record because the circuit court’s order did not dispose of Newoods, Inc., and, therefore, was not a final appealable order. See Nat’l Home Ctrs., Inc. v. Coleman, 370 Ark. 119, 257 S.W.3d 862 (2007). After an amended order was entered granting National Home Centers a default judgment against Newoods, National Home Centers filed the instant appeal. National Home Centers raises five points on appeal: (1) that Regions’s lis pendens was a nullity because it was filed before Regions’s foreclosure complaint; (2) the lis pendens statute does not apply to holders of material-man’s liens because a materialman’s lien relates back to the time when materials were supplied; (3) the lis pendens had no effect against National Home Centers because it was not joined as a defendant in Regions’s foreclosure action, and the circuit court’s foreclosure decree indicated that it only applied to the listed defendants; (4) there exists a genuine issue of material fact as to whether the “unclean hands” doctrine should be applied to Regions; and (5) the circuit court erred in denying National Home Centers’s summary-judgment motion.
Although National Home Centers made all of the above arguments in its cross-motion for summary judgment, Regions asserts that points one through four were not preserved for appeal because National Home Centers did not receive a specific ruling on any of those arguments. We have repeatedly held that it is appellant’s duty to obtain a specific ruling on arguments before the circuit court in order for us to review those arguments on appeal. See Bomar v. Moser, 369 Ark. 123, 251 S.W.3d 234 (2007); In re Estate of Keathley, 367 Ark. 568, 242 S.W.3d 223 (2006). Moreover, we have held that when a circuit court rules on some arguments when making its decision to grant summary judgment, while not addressing others, the arguments that are not addressed are not preserved for appeal. See Bomar v. Moser, supra.
In its order, the circuit court did not provide specific rulings. However, the order does state that “for reasons stated in open court,” the joint summary-judgment motion filed by Regions and Cain was granted and the cross-motion for summary judgment filed by National Home Centers was denied. A review of the transcript from the hearing reveals colloquies in which the circuit court addressed some of National Home Centers’s arguments. In response to its argument that the materialman’s lien was not affected by the lis pendens because it related back to a date before the lis pendens was filed, the circuit court stated in pertinent part:
[T]he timing [of lis pendens] has nothing to do with my analysis that I can tell except when you would have had notice. And the lis pendens was there when you went down and perfected your lien, thereby putting you on notice. You don’t get to go to the courthouse and claim you were there three weeks in advance for notice purposes.
The fact [that] it relates back doesn’t have anything to do with notice. It has to do with when your work began and when the lien attaches, if properly perfected.
Then, National Home Centers argued that a creditor should wait 120 days after the last day work is done on the property and conduct a title search to account for any unperfected materialman’s liens before filing a complaint. The circuit court replied,
They’re half-way through a house and they shut down in the middle of it, and you can’t — he keeps saying, “No, I’m going to finish it. No, I’m going to finish it.” But it’s been out there deteriorating, and you’re the bank. You can’t expect them to wait 120 days till completion when you have no idea when the last work has been done.
The court did not comment further, and National Home Centers did not request specific rulings on its other arguments. Thus, as to the following arguments advanced on appeal, the record reflects no specific rulings by the circuit court: the discrepancy in the filing of the lis pendens; the indications in the foreclosure decree that the decree only applied to the named defendants; and the application of the “unclean hands” doctrine. Accordingly, we hold that the only arguments preserved for appeal are whether the lis pendens statute applies to materialman’s liens and whether National Home Centers’s claims were barred despite the fact that it had not been joined as a party to Regions’s foreclosure action.
A circuit court shall grant summary judgment in favor of a party when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Crooked Creek, III, Inc. v. City of Greenwood, 352 Ark. 465, 101 S.W.3d 829 (2003); see also Ark. R. Civ. P. 56. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Crooked Creek, 352 Ark. at 469, 101 S.W.3d at 832. 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. Id.
National Home Centers asserts that the plain language of Arkansas’s lis pendens statute, Arkansas Code Annotated section 16-59-101 (Repl. 2005), clearly indicates that the legislature only intended for a lis pendens to give notice of a pending lawsuit to bona fide purchasers and mortgagees of the land in dispute. Because the statute does not specifically identify any other types of liens, including materialman’s liens, National Home Centers argues that the legislature intended to make materialman’s liens exempt from the effect of a lis pendens. National Home Centers also suggests that because Arkansas Code Annotated section 18-44-110(a)(1) provides that all materialman’s liens will “relate back” to when material was first provided to a construction site, its interest in the property, which relates back to the last delivery of supplies to Coleman in December 2004, predates the lis pendens and was unaffected by the outcome of Regions’s foreclosure action. Further, because a materialman’s lien can be perfected by filing within 120 days of the last day upon which supplies are delivered, National Home Centers asserts that Regions should have updated its title work on the property 120 days after the foreclosure complaint was filed in order to account for any materialman creditors. Accordingly, National Home Centers con- eludes that it was entitled to pursue its claim against the property and, because it was not joined as a party to Regions’s lawsuit, it is not bound by the outcome of the lawsuit.
In rebuttal, Regions and Cain argue that the lis pendens statute does apply to materialman’s liens, and that the “relation back” provision of Arkansas Code Annotated section 18-44-110 concerns only perfection and priority of materialman’s liens. Regions and Cain also assert that National Home Centers’s contention that Regions should have performed a title search 120 days after filing its complaint is an undue burden on creditors foreclosing on their own liens. We agree.
When interpreting a statute, this court first looks to the plain language of the statute, and, when the language is clear and unambiguous, it will follow the plain meaning of the words rather than resorting to the rules of construction. Releford v. Pine Bluff Sch. Dist. No. 3, 355 Ark. 503, 140 S.W.3d 483 (2004). A statute is ambiguous where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. Yamaha Motor Corp., U.S.A. v. Richard’s Honda Yamaha, 344 Ark. 44, 38 S.W.3d 356 (2001). When a statute is clear, it is given its plain meaning, and we will not search for legislative intent; rather, that intent must be gathered from the plain language used. Id.
Our lis pendens statute, Arkansas Code Annotated section 16-59-101, states that,
To render the filing of any suit at law or in equity in either a state court or United States district court affecting the title or any lien on real estate or personal property constructive notice to a bona fide purchaser or mortgagee of any such real estate or personal property, it shall be necessary for the plaintiff or any one (1) of the plaintiffs, if there is more than one (1) plaintiff, or his or her attorney or agent to file a notice of the pendency of the suit, for record with the recorder of deeds of the county in which the property to be affected by the constructive notice is situated.
This court has stated that the doctrine of lis pendens is based on considerations of public policy and convenience, which forbid a litigant to give rights to others, pending the litigation, so as to affect the proceedings of the court then progressing to enforce those rights, the rule being necessary to the administration of justice in order that decisions in pending suits may be binding and may be given full effect, by keeping the subject matter in controversy within the power of the court until final adjudication, that there may be an end to litigation, and to preserve the property that the purpose of the pending suit may not be defeated by successive alienations and transfers of title. Ashworth v. Hankins, 241 Ark. 629, 408 S.W.2d 871 (1966) (quoting 54 C.J.S. Lis Pendens § 1).
This court has long held that under the rule of lis pendens, a person who acquires an interest in the property subject to a pending lawsuit, in which a lis pendens notice has been filed, is bound by the result of the suit. Lightle v. Schmidt, 144 Ark. 304, 222 S.W. 46 (1920); Bailey v. Ford, 132 Ark. 203, 200 S.W. 797 (1918). We have been careful to point out that a lis pendens is “prospective in operation, giving notice to persons who may thereafter acquire an interest in property.” Lowes of Ark., Inc. v. Bush, 282 Ark. 508, 669 S.W.2d 198 (1984); see also Cardiac Thoracic & Vascular Surgery, P.A. Profit Sharing Trust v. Bond, 310 Ark. 798, 840 S.W.2d 1888 (1992). However, a party that acquired its interest prior to the filing of a lis pendens would have no reason to search for such a notice at a later date and is not bound by the lis pendens. Lowes of Ark., supra. Contrary to National Home Centers’s contention, our court has held that a lis pendens applies not only to purchasers, but it can also apply to creditors who obtained an interest in the property during the pendency of the suit, including judgment creditors. Mitchell v. Fed. Land Bank of St. Louis, 206 Ark. 253, 174 S.W.2d 671 (1943). Thus, a lis pendens could apply to a materialman who obtains an interest in property subject to a pending lawsuit. The issue then becomes: When does a materialman “obtain” an interest in property for purposes of the lis pendens rule?
Pursuant to Arkansas Code Annotated section 18-44-110, for purposes oí priority over other creditors, a materialman’s lien is considered to relate back to the date on which the particular material was furnished. Ark. Code Ann. § 18-44-110(a)(l) (Repl. 2003). According to Arkansas Code Annotated section 18-44-117(a)(1) (Supp. 2007), a materialman has 120 days after materials are last furnished to perfect his or her lien by either filing a lawsuit or filing notice of the lien with the clerk of the circuit court of the county in which the property subject to the lien is situated. See also Nat’l Lumber Co. v. Advance Dev. Corp., 293 Ark. 1, 732 S.W.2d 840 (1987); Transp. Props., Inc. v. Cent. Glass & Mirror of Nw. Ark., Inc., 38 Ark. App. 60, 827 S.W.2d 667 (1992).
Although a materialman’s interest may “relate back” to the last day materials were supplied for purposes of priority, if a materialman does not perfect its interest by either filing notice of the lien or filing a lawsuit within 120 days, the materialman will have no claim against the property. In other words, when a materialman delivers the last supplies to a construction site, he or she accrues an expectant interest in the property, but that interest does not vest and become enforceable until it is perfected. Moreover, the rule of lis pendens was meant to allow for the efficient settling of title and foreclosure of the property in question. So, to burden a foreclosing creditor with the duty of discovering materialmen with unrecorded liens on the property would be utterly impracticable and against the purpose of the lis pendens rule. Accordingly, we hold that a materialman does not “obtain” an interest in the property for purposes of our lis pendens statute until he or she has perfected his or her lien in the property.
Here, National Home Centers may have accrued an expectant interest in the property in question when it delivered its last supplies to the construction site in December 2004. However, it did not perfect its lien until twenty-one (21) days after Regions’s lis pendens was filed. Thus, National Home Centers did not “obtain” an interest in the property prior to Regions filing the lis pendens, and, therefore National Home Centers is subject to the lis pendens. Additionally, because we have established that a person who acquires an interest in property subject to a lis pendens is treated as though he or she was a party to the lawsuit and does not have to be joined in the pending lawsuit to be affected by its outcome, National Home Centers’s argument that it should have been joined as a defendant is moot.
We also need not reach National Home Centers’s final argument on appeal that the circuit court erred in denying its motion for summary judgment. We have long held that a denial of a motion for summary judgment is not a final appealable order, and is not subject to this court’s review on appeal. See Flagstar Bank v. Gibbins, 367 Ark. 225, 238 S.W.3d 912 (2006). For this reason, we will not address National Home Centers’s arguments as to its motion for summary judgment.
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Tom Glaze, Justice.
This case is an appeal from an order by Pulaski County Circuit Court denying a request for attorney’s fees under 42 U.S.C. § 1988(b). In Jones v. Flowers, 547 U.S. 220 (2006), the United States Supreme Court held that when a mailed notice of a tax sale is returned unclaimed, a state must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so — reversing this court’s decision in Jones v. Flowers, 359 Ark. 443, 198 S.W.3d 520 (2004). Upon remand from the Supreme Court for proceedings consistent with its opinion, this court in turn remanded the case to the Pulaski County Circuit Court on September 21, 2006. Jones filed a status report on November 14, 2006, asserting that all that remained for the circuit court to do was to enter a final judgment for Jones and set the case for proceedings to determine relief, and stated the following:
Because Jones is the prevailing party, he is entitled to recovery of his attorney’s fees at each stage of this litigation. In his Complaint, Jones requested that he “recover from defendants his attorney fees incurred in the prosecution of this cause ....” Jones made a federal constitutional challenge to state action and won. Thus he is entitled to recover fees from the State under 42 U.S.C. § 1988.
Following a status conference on November 15, 2006, the circuit court issued an order denying Jones’s request for attorney’s fees because “[t]he first mention of 42 U.S.C. § 1983 was in [Jones’s] Status Report filed on November 16, 2006." Jones appeals, arguing that an action does not have to be specifically pled under § 1983 for entitlement to attorney’s fees under § 1988(b).
42 U.S.C. § 1983 provides a means to allow a plaintiff to obtain relief in federal courts if he can show (1) the deprivation of a right secured by the Constitution or laws of the United States, and (2) that a person acting under color of state law caused the deprivation. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). A court has discretion to award reasonable attorney’s fees for a successful § 1983 action. 42 U.S.C. § 1988(b) (2000).
It appears that most, if not all, federal courts of appeal that have considered this issue have held that regardless of whether a plaintiff specifically cites 42 U.S.C. §§ 1983 or 1988 in his original pleadings, a successful constitutional challenge is a proceeding to enforce § 1983 within the meaning of § 1988. For example, in Goss v. City of Little Rock, 151 F.3d 861 (8th Cir. 1998), a landowner (Goss) filed an action against the City of Little Rock in federal district court, alleging an unconstitutional taking. The federal court dismissed the claim and denied Goss’s request for attorney’s fees because his complaint did not cite § 1983 as the basis for his action. The Eighth Circuit reversed on appeal, holding that the substance of the action, rather than the form of the pleading, should determine the applicability of attorney’s fees under § 1988(b). Id. at 866. The Eighth Circuit first examined the language of § 1983, and the meaning of “a proceeding to enforce” § 1983, and noted the following:
As the Supreme Court has observed, the meaning of “a proceeding to enforce” § 1983 is unclear on its face because § 1983 does not create substantive rights that a person can “enforce” in the typical sense of the word. Instead § 1983 establishes a means by which people can enforce the Constitution. It simply provides that, when a state actor violates a person’s constitutional rights, that person can sue the state actor. That, of course, is exacdy what Goss did. Indeed, § 1983 does nothing more than make lawsuits like this one possible. Thus Goss did enforce § 1983 in that he did precisely what it authorizes people to do.
Id. at 865 (internal citations omitted).
The Eighth Circuit then turned to the legislative history of § 1988(b), and found that “Congress was more concerned with the substance of plaintiffs’ claims than with the form in which those claims are presented” and that the “ ‘function of an award of attorney’s fees [under § 1988(b)] is to encourage the bringing of meritorious civil rights claims which might otherwise be abandoned because of the financial imperatives surrounding the hiring of competent counsel.’ ” Id. at 865 (quoting City of Riverside v. Rivera, 477 U.S. 561, 578 (1986). The Eighth Circuit held that Goss’s claim was indeed a meritorious civil rights claim, although he did not cite § 1983, and “ ‘the legislative history makes it perfectly clear [§ 1988(b)] was intended to apply in any action for which § 1983 provides a remedy.’ ” Id. (quoting Maher v. Gagne, 448 U.S. 122, 129 n.11 (1980)). Additionally, the Eighth Circuit held that it is irrelevant if a party prevails in an action on grounds other than § 1983 in determining whether attorney’s fees should be awarded under § 1988; instead, “ ‘[i]f§ 1983 would have been an appropriate basis for relief, then [the plaintiff] is entitled to attorney’s fees under § 1988 even though relief was actually awarded on another ground.’ ” Id. at 866 (quoting Consolidated Freightways Corp. v. Kassel, 730 F.2d 1139, 1141-42 (8th Cir. 1984).
The Eighth Circuit holding in Goss ■— that substance prevails over form in determining whether attorney’s fees are appropriate under § 1988(b) where a plaintiff fails to explicitly plead or present a claim under § 1983 — appears to be consistent with other federal circuit courts that have addressed the issue. See, e.g., Ams. United for Separation of Church & State v. Sch. Dist. of Grand Rapids, 835 F.2d 627, 631 (6th Cir. 1987) (“[Section] 1983 is concerned with the substance of the prevailing party’s action, rather than the form in which it is presented”); Haley v. Pataki, 106 F.3d 478, 481-82 (2d Cir. 1997) (failure to plead § 1983 is not fatal to a claim for attorney’s fees if the pleadings and evidence present a substantial claim for which § 1983 provides a remedy) (quoting Ams. United, 865 F.2d at 631); Thorstenn v. Barnard, 883 F.2d 217, 218 (3d Cir 1989) (rejecting the argument that the plaintiffs’ failure to cite § 1983 in their complaints barred their request for attorney’s fees under § 1988).
The State does not present any counter-argument to Jones’s § 1983 analysis and argument, but instead now asserts that under Ark. R. Civ. P. 54(e), Jones forfeited his entitlement to attorney’s fees because he failed to file the motion within fourteen days of this court’s mandate on September 21, 2006. A final judgment under Ark. R. Civ. P. 54(a) is “one that dismisses the parties, discharges them from the action, or concludes their rights to the subject matter in controversy.” Looney v. Looney, 336 Ark. 542, 547-48, 986 S.W.2d 858, 861 (1991) (quoting McGann v. Pine Bluff Police Dep’t, 334 Ark. 352, 355, 974 S.W.2d 462, 463 (1998)); see also Petrus v. Nature Conservancy, 330 Ark. 722, 957 S.W.2d 688 (1997). This court has consistently interpreted Ark. R. Civ. P. 54(e) to be applicable only upon an entry of judgment that finally concludes the controversy for which attorney’s fees are sought. See, e.g., Crawford County v. Jones, 365 Ark. 585, 232 S.W.3d 433 (2006); State Auto Prop. & Cas. Ins. Co. v. Swaim, 338 Ark. 49, 991 S.W.2d 555 (1999). In Looney, supra, the court stated that “[b]ecause we remand this issue for resolution of the respective rights of the parties in the land to be partitioned, the issue of an appropriate award for costs and attorney’s fees is premature.” 336 Ark. at 550, 986 S.W.2d at 863
The State relies heavily on Norman v. Norman, 347 Ark. 682, 66 S.W.3d 635 (2002) (Norman III) to support its argument that Rule 54(e) bars Jones’s request for attorney’s fees. However, Norman III is distinguishable from the present case. In Norman v. Norman, 333 Ark. 644, 970 S.W.2d 270 (1998) (Norman I), this court addressed an appeal from a final order denying a motion to disqualify an attorney and his law firm, and held that the trial court did not properly address the facts in the case in denying the motion. Although the Norman I court stated that it could remand the case for determination of the disqualification motion, it concluded that to do so would be “pointless” because there was a fully developed record before the court, and accordingly this court ordered the attorney disqualified. Id. at 651, 970 S.W.2d at 273. On a later appeal in Norman III, supra, the court affirmed the trial court’s denial of a motion for attorney’s fees, holding that the motion was inadequate as well as untimely under Rule 54(e) because the motion was filed forty-six days after our mandate in Norman I. Norman III, 347 Ark. at 688, S.W.2d at 639.
While the mandate in Norman I was a final resolution of the matter that was the subject of the appeal, here, by contrast, the court’s mandate issued on September 25, 2006, simply remanded the case for further “proceedings on relief’ consistent with the Supreme Court’s decision. A final judgment triggering Rule 54(e) did not occur until the circuit court issued its order on December 21, 2006, that denied the Commissioner’s request to reopen the question of liability, ordered that Jones be given his house back, denied Jones his requested attorney’s fees, and ordered the clerk to close the case. Only upon this final resolution of the respective parties’ rights was a motion for attorney’s fees appropriate.
In sum, the Supreme Court held that the State violated Jones’s due process rights under the United States Constitution by failing to take additional reasonable steps to notify him before a tax sale of his property when the initial notice was returned undelivered. Thus, Jones’s action was a a meritorious civil rights claim. We are persuaded by the overwhelming federal court precedent holding that substance prevails over form when a party fails to specifically plead an action under § 1983. Accordingly, we reverse the trial court’s order denying attorney’s fees under § 1988(b) and remand the case for proceedings consistent with this opinion. Additionally, the motion Jones submitted requesting leave to file a supplemental addendum is denied as moot.
Reversed.
Brown and Danielson, JJ., concur in part, dissent in part.
The status report was actually filed on November 14,2006, and Jones cited § 1988 rather than § 1983 as the order states. Also, Jones did request attorney fees in his original complaint before the Pulaski County Circuit Court.
Flowers filed a motion in the circuit court, stating that all issues between her and Jones have been setded, and Jones similarly filed a motion to dismiss Flowers from the appeal. Accordingly, the sole appellee is the Arkansas Commissioner of State Lands.
The dissent posits a procedural bar to our review of the State’s alternative argument for affirmance. Yet, this court has recently reiterated that the State’s failure to raise an alternative ground for affirmance below does not preclude us from addressing the issue on appeal. Flores v. State, 348 Ark 28, 69 S.W.3d 864 (2002) (reversed and remanded); McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002); Simmons First Nat’l Bank v. Wells, 279 Ark. 204, 650 S.W.2d 236 (1983) (reversed and remanded).
The question was raised at oral argument whether the trial court ever had jurisdiction of this suit. Article 5, section 20, of the Arkansas Constitution provides that “[t]he State of Arkansas shall never be made a defendant in any of her courts.” This court has recognized only two ways in which sovereign immunity may be surmounted: (1) where the State is the moving party seeking specific relief; and (2) where an act of the legislature has created a specific waiver of immunity. Simons v. Marshall, 369 Ark. 447, 255 S.W.3d 838 (2007). Citing Arkansas Writer’s Project, Inc. v. Ragland, 293 Ark. 395, 738 S.W.2d 402 (1987), Jones asserted in oral argument and in his brief that Arkansas courts have concurrent jurisdiction over § 1983 claims. However, this court has cited Arkansas Writer's Project, supra, and pointed out that it remains unsettled whether state courts must exercise such jurisdiction. See Virden v. Roper, 302 Ark. 125, 128, 788 S.W.2d 470, 473 (1990); see also Alden v. Maine, 527 U.S. 706 (1999) (abrogating Jacoby v. Ark. Dep’t of Educ., Vocational & Technical Div., 331 Ark. 508, 962 S.W.2d 773 (1998)). The court has decided not to address these issues at this time. | [
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Tom Glaze, Justice.
Appellants Vimy Ridge Municipal Water Improvement District No. 139 and The Bank of New York Trust Company, (collectively, “Vimy Ridge”) appeal an order of the Pulaski County Circuit Court that granted summary judgment in favor of appellees J. A. Ryles; Rylwell LLC; John Ryles; Guy Maris; Whitwell Inc.; and Mark Wilcox, Land Commissioner (collectively, “Ryles”). We affirm.
On October 1, 2004, Vimy Ridge filed a foreclosure action against Ryles and other defendants, claiming that municipal improvement district taxes were delinquent. Ryles argued that Vimy Ridge’s foreclosure action was barred by a three-year statute of limitations under Ark. Code Ann. § 14-28-1208 (Repl. 1998). At a hearing on summary-judgment motions, Ryles argued that the Little Rock ordinance pertaining to the Vimy Ridge water improvement district taxes did not specify when those taxes became delinquent, but under Ark. Code Ann. § 14-86-1204 (Repl. 1998), when a district fails to specify the time of delinquency, the special taxes become delinquent ninety days after those special taxes become “due and payable.” Vimy Ridge countered that the ordinance adopted the same collection method as used for general taxes under Title 26, which are due and payable from the first business day of March through October 10, and did not become delinquent until October 10, 2001. Because Vimy Ridge filed its foreclosure action on October 1, 2004, it asserted its action was filed nine days within the three-year statute of limitations.
The circuit court granted Ryles’s motion for summary judgment, holding that Ark. Code Ann. § 26-36-201 (a) (Supp. 2007) was not applicable to the improvement district’s special taxes at issue. Vimy Ridge appealed the circuit court’s ruling, but this court held that there was no record of any disposition regarding defendants “G.P. Ryles, Guy Maris, John Doe(s) and Jane Doe(s).” We dismissed the appeal without prejudice because there was no final order. Vimy Ridge Mun. Water Imp. Dist. No. 139 v. Ryles, 369 Ark. 217, 253 S.W.3d 436 (2007). The trial court issued a final order on August 15, 2007, and Vimy Ridge now repeats the arguments as to the merits it previously presented in its first appeal.
As an initial matter, Ryles contends that this court lacks jurisdiction because Vimy Ridge’s second notice of appeal does not reference the final order issued by the trial court on August 15, 2007. Instead, the notice of appeal mentions the summary judgment order entered May 19, 2006. However, the trial court’s August 15, 2007 order simply reiterated the previous disposition of the motions for summary judgment, and dismissed with prejudice the defendants unaddressed by the previous order. Under these circumstances, Vimy Ridge’s failure to designate the August 15 order in its notice of appeal is not fatal to this appeal. See Farm Bureau Mut. Ins. Co. of Ark., Inc. v. Sudrick, 49 Ark. App. 84, 896 S.W.2d 452 (1995); see also Dugal Logging, Inc. v. Ark. Pulpwood Co., Inc., 336 Ark. 55, 984 S.W.2d 410 (1999) (explaining that an appellant’s noncompliance with Ark. R. App. P.-Civ. 3(e) does not render the notice automatically void).
Turning to the merits of this case, we do so by reviewing the trial court’s decision in this tax case de novo, but will not disturb the trial court’s findings of fact unless they are clearly erroneous. Barclay v. First Paris Holding Co., 344 Ark. 711, 42 S.W.3d 496 (2001); Pledger v. Troll Book Clubs, Inc., 316 Ark. 195, 871 S.W.2d 389 (1994). This court also reviews issues of statutory construction de novo, because it is for this court to decide what a statute means. City of Maumelle v. Jeffrey Sand Co., 353 Ark. 686, 120 S.W.3d 55 (2003). While this court is not bound by the decision of the trial court, in the absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Barclay, supra.
The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Weiss v. McFadden, 353 Ark. 868, 120 S.W.3d 545 (2003). An additional rule of statutory construction in the area of taxation cases is that when the court reviews matters that involve the levying of taxes, any and all doubts and ambiguities must be resolved in favor of the taxpayer. Barclay, supra. Further, this court has stated that “it is blackletter law for statutory construction to give effect to the specific statute over the general.” Id. at 730, 42 S.W.3d at 508 (citing Board of Trustees for City of Little Rock Police Dept. Pension & Relief Fund v. Stodola, 328 Ark. 194, 942 S.W.2d 255 (1997)).
The special tax provision for the Vimy Ridge improvement district is provided for in Little Rock ordinance number 15-513. The relevant section of the ordinance reads as follows:
the assessment. . . shall be collected by the County Collector with the first installment of general taxes becoming due in the year 1989 and annually thereafter with the first installment of general taxes until the whole of the local assessment shall be paid.
The ordinance does not specify the date the special taxes are delinquent, and § 14-86-1204 states that when an improvement district fails to specify the date its special taxes become delinquent by ordinance, the delinquency date is ninety days after they first become due and payable.
Vimy Ridge presents two arguments. First, Vimy Ridge asserts that § 26-36-201 (a) should be applied to the question of when the improvement taxes become delinquent. That section states that general taxes become delinquent on October 10; therefore, Vimy Ridge argues that the special taxes established in the ordinance also became delinquent on October 10. Vimy Ridge’s second argument is that the ordinance does not address what is “due and payable” and that the only specification for the payment of special taxes is, under Ark. Code Ann. § 14-90-801 (a) (Repl. 1998), annual special tax assessments are first collected as specified by the ordinance, and subsequent annual installments of the special tax “shall be paid” with the first installment of general taxes. Vimy Ridge argues that it follows that “due and payable” is a period of time, not a single day, and that under the installment plan for general taxes found in § 26-35-501 (a)(1) (Supp. 2007), that period of time does not end until October 10.
Both of Vimy Ridge’s arguments err by attempting to apply provisions for the payment of general taxes found in Title 26 of the Arkansas Code to the special taxes of improvement districts under Title 14. In Quapaw Central Business Improvement District v. Bond-Kinman, Inc., 315 Ark. 703, 706, 870 S.W.2d 390, 391-92 (1994), the court pointed out that municipal improvement districts “constitute a separate and distinct species of taxing districts as contra-distinguished from counties, municipal corporations and school districts.”
Looking to provisions for general or ad valorem taxes, § 26-36-201 (a) reads as follows:
(a)(1) All taxes levied on real estate and personal property for the county courts of this state ... shall be deemed to be due and payable at the county collector’s office any time from the first business day of March to and including October 10.
(2) All taxes unpaid after October 10 shall be considered as delinquent.
Section 26-35-501 (a) allows for these annual general or ad valorem taxes to be paid in quarterly installments, and provides:
(a)(1) All ad valorem taxes levied on real and personal property by the several county courts of the state when assembled for the purpose of levying taxes. . . shall be due and payable on and from the first business day in March to and including October 10 in the year succeeding the year in which the levy is made.
(2) (A) Every taxpayer other than a utility or carrier shall have the option to pay the taxes on real property of the taxpayer in installments as follows:
(i) The first installment of one-fourth of the amount of the taxes shall be payable on and from the third Monday in February to and including the third Monday in April;
(ii) A second installment of one-fourth (1 /4) or a first installment of one-half if no payment was made before the third Monday in April shall be payable on and from the third Monday in April to and including the third Monday in July; and
(iii) The third installment of one-half (1/2) shall be payable on and from the third Monday in July to and including October 10.
Clearly, the General Assembly has provided that general taxes may be paid in installments under the schedule provided in § 26-35-501 (a) that extend until October 10, and that the general taxes do not become “delinquent” until October 10 under § 26-36-201(a).
However, these provisions for general taxes under Title 26 would only apply to municipal improvement district taxes if they specifically adopted the installment scheme by ordinance. Section 14-90-801(b) (2) (emphasis added) states that:
The municipality may provide in the ordinance that, after payment of the initial installment, the annual assessment of benefits may be paid in quarterly installments along with the quarterly installments of ad valorem taxes at the election of the taxpayer.
This section allows a municipality to provide, by ordinance, for the taxpayer in the improvement district to pay their special taxes in installments and on the same schedule as the general or ad valorem taxes.
The Little Rock ordinance at issue provides that the water improvement district assessment “shall be collected by the County Collector with the first installment of general taxes becoming due in the year 1989 and annually thereafter with the first installment of general taxes until the whole of the local assessment shall be paid.” By the ordinance’s plain language, the improvement district tax becomes due and payable at the same time as the first installment of the general taxes provided for in § 26-35-501 (a) — “the third Monday in February to and including the third Monday in April.”
Although the Little Rock ordinance did specify that the special taxes were to be collected “annually [ ] with the first installment of general taxes,” the ordinance did not adopt the subsequent quarterly installment provisions for general taxes under Title 26, which improvement districts “may” adopt by ordinance as provided by § 14-90-801 (b)(2). Without such adoption, and without specifying the date the special taxes are delinquent, the specific statute dealing with when special improvement taxes become delinquent applies (§ 14-86-1204), and the delinquency date is ninety days after the special taxes are due and payable. Therefore, because the Little Rock ordinance specifies that the special taxes are to be collected annually, “with the first installment of general taxes,” and § 26-35-501(a) specifies that the first installment of the general taxes “shall be payable on and from the third Monday in February to and including the third Monday in April,” the three-year statute of limitations began to run ninety days after the third Monday in April, 2001, well before Vimy Ridge filed its foreclosure action on October 1, 2004. Accordingly, the trial court did not err in holding that the statute of limitations barred Vimy Ridge’s foreclosure action for the 2001 delinquent improvement district taxes.
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Per Curiam.
On February 28, 2008, we remanded this matter to the circuit court for compliance with Arkansas Rule of Appellate Procedure — Civil 5(b)(1) (2007), and on May 8, 2008, an amended order for extension of time to file the record on appeal was filed with this court’s clerk. Mr. Griddine’s motion for rule on clerk, by and through his attorney, Sara M. Hartness, is now before us.
In McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004), we clarified our treatment of motions for rule on clerk and motions for belated appeals. There we said:
Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.
356 Ark. at 116, 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he or she has erred and is responsible for the failure to perfect the appeal. See id. When it is plain from the motion, affidavits, and record that relief is proper under either rule based on error or good reason, the relief will be granted. See id. If there is attorney error, a copy of the opinion will be forwarded to the Committee on Professional Conduct. See id.
Arkansas Rule of Appellate Procedure-Civil 5(a) (2007) provides that the record on appeal shall be filed within ninety days from the filing of the first notice of appeal, “unless the time is extended by order of the circuit court as hereinafter provided.” Ark. R. App. P.-Civ. 5(a) (emphasis added). Rule 5(b)(1) sets forth the findings required to be made by the circuit court when granting an extension of time in which to file the record:
(b) Extension of time.
(1) If any party has designated stenographically reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period prescribed by subdivision (a) of this rule or a prior extension order, may extend the time for filing the record only if it makes the following findings:
(A) The appellant has filed a motion explaining the reasons for the requested extension and served the motion on all counsel of record;
(B) The time to file the record on appeal has not yet expired;
(C) All parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing;
(D) The appellant, in compliance with Rule 6(b), has timely ordered the stenographically reported material from the court reporter and made any financial arrangements required for its preparation; and
(E) An extension of time is necessary for the court reporter to include the stenographically reported material in the record on appeal.
Ark. R. App. P.-Civ. 5(b)(1). We expect strict compliance with this rule, see Russell v. State, 368 Ark. 439, 246 S.W.3d 856 (2007) (per curiam), and have explained that, upon remand for compliance with the rule, a circuit court shall determine whether the rule was complied with at the time the original motion for extension of time was filed and granted. See Bond v. State, 373 Ark. 37, 280 S.W.3d 20 (2008) (per curiam).
After reviewing the amended order returned on remand, we are still unable to determine whether Rule 5(b)(1) was complied with at the time the original motion for extension of time was filed and granted. Accordingly, we conclude that a proper order of extension was not obtained by Mr. Griddine. Because a proper extension of time was not obtained, Mr. Griddine’s time for filing the record was not extended, and his record was not timely filed. It is, therefore, plain from the record that there was error on Ms. Hartness’s part in that Mr. Griddine’s record was not timely filed. Pursuant to McDonald v. State, supra, we grant Mr. Griddine’s motion for rule on clerk and forward a copy of this opinion to the Committee on Professional Conduct.
Motion granted. | [
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Robert L. Brown, Justice.
Appellant Richard H. Young ^.appeals from an order of the Supreme Court Committee on Professional Conduct (“Committee”) finding him in violation of two provisions of the Arkansas Rules of Professional Conduct and suspending his license to practice law for six months. We affirm the suspension.
The facts leading up to the Committee’s order are these. On March 5, 2004, Young received notice from the Committee that his license to practice law was going to be suspended for three months as a result of his failure to respond to a complaint that had been made before the Committee. Young was informed that the suspension would become final unless he filed a motion for reconsideration within twenty days. Young failed to file a motion for reconsideration, and the suspension was filed and became final on March 30, 2004, when the Committee filed its order with the clerk of this court.
Despite having knowledge of his pending three-month suspension, Young met with Linnie Thomas and her son, Justin Thomas, who had been charged with a felony, on March 22, 2004. The Thomases engaged Young as Justin Thomas’s attorney, and Ms. Thomas paid Young $3,000 of the $10,000 fee that he requested. At no time did Young inform the Thomases that his license to practice law was shortly due to be suspended. Ms. Thomas later learned of Young’s three-month suspension in the newspaper. Unable to reach Young via telephone, the Thomases eventually engaged another attorney to represent Justin Thomas.
As advised by her new attorney, Ms. Thomas requested an itemized bill and refund from Young. When no bill or refund had been received by August 4, 2004, Ms. Thomas filed a complaint with the Committee. On February 28, 2006, the Office of Professional Conduct sent Young a letter informing him of the complaint that had been made against him. Young and Ms. Thomas communicated, and he agreed to repay her $2,500 of the money she had paid him. On June 5, 2006, he sent her the first installment of the refund, a money order for $200. Young failed to make any additional payments to Ms. Thomas.
On September 29, 2006, a summons and complaint were sent to Young via certified mail. It is not apparent from the record that Young received or signed for this letter. On October 13, 2006, Young sent Ms. Thomas another money order in the amount of $300. On October 26, 2006, the summons and complaint were again mailed to Young, who returned an affidavit of service on November 9, 2006, and filed a response. A panel of the Committee found that Young violated Rules 1.4(b) and 8.4(c) of the Arkansas Rules of Professional Conduct and suspended him for six months. The panel also ordered Young to pay $2,500 in restitution to Ms. Thomas. Young then requested a public hearing.
A hearing was held before Panel B of the Committee on June 15, 2007. At that time, despite the fact that more than three years had passed since Young accepted $3,000 from Young and more than one year had passed since Young agreed to refund $2,500 to Ms. Thomas, Young had only refunded $500. Young did not dispute the factual allegations made against him by the Committee or the fact that he owed Ms. Thomas $2,000. He contended, nevertheless, that a suspension would make it nearly impossible for him to find a good-paying job where he could pay the restitution owed to Ms. Thomas. Young also argued that his conduct was not intentional. As a mitigating factor, he noted his wife’s severe depression and prescription drug dependence.
The Committee unanimously found that Young’s conduct violated Rule 1.4(b) and Rule 8.4(c) of the Arkansas Rules of Professional Conduct. As a result, the Committee, by a vote of four to three, suspended Young’s license to practice law for six months, ordered Young to pay Linnie Thomas restitution of $2,000, and assessed fees and costs against him of $100. Young appeals only the suspension of his license.
Young now asserts on appeal, as he did before the Committee, that he did not formally withdraw from Justin Thomas’s case because he mistakenly thought that he had arranged for another attorney to complete Justin Thomas’s representation without any additional fee. It was only upon speaking to Ms. Thomas in the line at the grocery store, he notes, that he knew that the matter had not been satisfactorily resolved. He claims that, after his three-month suspension, he was in a shaken frame of mind and not fully able to grasp his situation. The prior suspension of which Young failed to inform the Thomases, he states, was not the result of his behavior to a client but rather of his failure to respond to the disciplinary complaint. Therefore, he maintains, it is inconsistent and unduly harsh to consider his previous suspension as an aggravating factor that justifies the imposition of a suspension, rather than a reprimand, in the case at hand. Moreover, Young argues that, if his license is suspended, it will be extremely difficult for him to find other employment. This, he notes, will adversely affect his ability to repay Ms. Thomas the money he owes her. The Committee did not file a brief in response.
We initially observe that Young does not challenge the Committee’s finding that he violated the Rules of Professional Conduct but only the decision to suspend his license for six months. In reviewing appeals from the Committee, this court conducts a de novo review on the record and affirms actions taken by the Committee unless they are “clearly against the preponderance of the evidence.” Walker v. Sup. Ct. Comm. on Prof'l Conduct, 368 Ark. 357, 362, 246 S.W.3d 418, 422 (2007) (quoting Comm. on Prof'l Conduct v. Revels, 360 Ark. 69, 73, 199 S.W.3d 630, 632) (2004)) (citations omitted).
We turn then to consideration of the rules that Young violated. Rule 1.4(b) of the Arkansas Rules of Professional Con duct (2007) reads that “[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” The Committee found in its order that Young violated this rule by accepting Justin Thomas as a client without informing him that Young would “almost certainly be suspended from law practice a few days later for several months and be unable to represent Justin.” Had he informed the Thomases of this fact, the Committee observed in its order, they could have saved the $3,000 which they “paid to Young for legal services he would not be able to render.”
Rule 8.4(c) of the Arkansas Rules of Professional Conduct states that “[i]t is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” The Committee found in its order that Young violated this rule by “knowingly failing] to tell Linnie and Justin Thomas on March 22, 2004 that Young’s law license was almost certainly about to be suspended for three (3) months only a few days later,” by knowingly accepting $3,000 from Ms. Thomas despite his pending suspension, and by telling Ms. Thomas on May 31, 2006 that he would refund $2,500 to her but failing to make regular payments.
The suspension of an attorney’s license to practice law for up to five years is one of the sanctions that the Committee is permitted to impose. Ark. Sup. Ct. P. Regulating Profl Conduct § 17(E)(2). Suspension is appropriate if the Committee finds that a lawyer has engaged in “serious misconduct” that does not warrant disbarment. Id. Included in the various types of conduct that constitute serious misconduct are (1) “misconduct involving] dishonesty, deceit, fraud, or misrepresentation by the lawyer” and (2) misconduct by a lawyer whose “prior record of public sanctions demonstrates a substantial disregard of the lawyer’s professional duties and responsibilities.” Id. § 17(B)(3), (5).
In deciding what sanction to mete out, the Committee considers these factors:
A. The nature and degree of the misconduct for which the lawyer is being sanctioned.
B. The seriousness and circumstances surrounding the misconduct.
C. The loss or damage to clients.
D. The damage to the profession.
E. The assurance that those who seek legal services in the future will be protected from the type of misconduct found.
F. The profit to the lawyer.
G. The avoidance of repetition.
H. Whether the misconduct was deliberate, intentional or negligent.
I. The deterrent effect on others.
J. The maintenance of respect for the legal profession.
K. The conduct of the lawyer during the course of the Committee action.
L. The lawyer’s prior disciplinary record, to include warnings.
Id. § 19.
Weighing these factors, the Committee’s decision to suspend Young’s license for six months was clearly supported by the preponderance of the evidence. The Committee found that Young took $3,000 from Linnie Thomas while knowingly withholding information that would almost certainly have caused her to retain another lawyer in Young’s stead. By so doing, Young profited at the expense of Linnie Thomas, who eventually had to spend additional money to retain another attorney. This easily qualifies as serious misconduct involving “dishonesty, deceit, fraud, or misrepresentation.” Id. § 17(B)(3).
Moreover, Young had a previous disciplinary record that included (1) a three-month suspension for failing to respond to a complaint from a judge alleging that Young failed to appear for a client’s scheduled court appearance, wrote a check for his client’s bond on a closed account that purported to be Young’s trust account, and failed to pay a contempt fine that was issued by the court; (2) a five-month consent suspension based on a complaint from a bankruptcy judge alleging that Young repeatedly filed deficient schedules, failed to appear for numerous hearings, failed to comply with court orders to pay fines of $2,000 and disgorge fees, wrote a check to disgorge fees that was returned for insuffi cient funds, and lied to the court eleven times about the status of his fee; (3) a warning for failure to file an appellate brief for a criminal client, resulting in dismissal of the appeal; and (4) a reprimand for allowing his nonlawyer wife to manage the firm trust account without proper training and supervision, resulting in his wife writing checks for personal obligations out of the trust account and depositing nonclient funds into the trust account and leading to five overdrafts of the trust account. This prior record indicates a “substantial disregard of the lawyer’s professional duties and responsibilities.” Id. § 17(B)(5).
Young’s dishonest conduct and failure to communicate adequately with the Thomases led him to profit at the Thomases’ expense. Whatever Young’s state of mind at the time he took the money, it is clear that he knew of the pending suspension of his license, and his conduct cannot be considered merely negligent. Young’s prior disciplinary record, in addition, demonstrates a substantial disregard of his professional duties and responsibilities.
Affirmed.
Danielson, J., not participating.
The Committee provides no reason for the substantial delay between the filing of the complaint and the letter sent by the Office of Professional Conduct.
Young was to retain $500 for the legal services he had performed prior to the suspension of his license.
Three committee members voted to reprimand Young, while four voted to suspend his license for six months.
On June 28,2007, Young petitioned the Committee for a stay of its order pending his appeal to this court. The petition was granted on July 6,2007.
Young fails to explain the nature of this alleged inconsistency. | [
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PAUL DANIELSON, Justice.
Appellant the State of Arkansas appeals from the circuit court’s dismissal of charges against appellee Renee Whitfield due to an allegedly defective arrest warrant. The sole point on appeal is that the circuit court erred as a matter of law in doing so. As the facts pertinent to this appeal are sufficiently set forth in State v. Richardson, 373 Ark. 1, 280 S.W.3d 20 (2008), handed down this same date, it is unnecessary to do so here. For the reasons set forth in Richardson, we reverse and remand.
Reversed and remanded. | [
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Jim Hannah, Chief Justice.
Appellant Ken Swindle brings this appeal raising numerous challenges to the Washington County Circuit Court’s order finding him in contempt of court and sentencing him to 24 hours’ confinement in the Washington County Detention Center. The State contends that, because Swindle has already served his sentence of confinement, his appeal is moot and should be dismissed.
Attorney Swindle represented defendant Juan Lux-Lux on a charge of first-degree forgery. Swindle appeared with Lux-Lux at an arraignment in the circuit court on July 11, 2007. At the arraignment, the circuit court informed Lux-Lux that he was entitled to a jury trial. On July 12, 2007, the circuit court transmitted, by facsimile, a letter order to Swindle, notifying him that Lux-Lux’s trial had been set for September 10, 2007. Also included in the letter was the following statement: “If a jury is requested, please notify my office at least 48 hours in advance, or it will be assumed that a bench trial is sufficient or a plea will be entered on the trial date”
On July 13, 2007, Swindle filed a Motion to Continue and Objection to Notice, on behalf of Lux-Lux. The motion stated that the 48-hour notice requirement was “ambiguous and unclear to the Defendant.” Further, the motion provided that there had been no omnibus hearing in the matter and that the “Defendant [had not] waived any of his Constitutional rights.” Therefore, Lux-Lux “objected]” to the notice sent by the circuit court. The motion also noted that Swindle had a scheduling conflict with the date set for trial. Finally, the motion requested that the trial set for September 10 be continued, that Lux-Lux be given a date for an omnibus hearing, “and for all other rights guaranteed to him by the Arkansas and Federal Constitutions.” On July 16, 2007, Swindle filed an Amended Motion to Continue and Objection to Notice, on behalf of Lux-Lux. The motion stated that Lux-Lux “continue[d] to object to the setting notice of September 10, 2007, for the reasons stated in his original Motion to Continue and Objection to Notice.” Additionally, the motion stated that Lux-Lux requested “all other rights guaranteed to him by the Arkansas and Federal Constitutions.”
Swindle and Lux-Lux appeared in the circuit court on September 10, 2007. The following colloquy took place between Deputy Prosecuting Attorney Chreea Stanimirovic, Swindle, and the circuit court:
Ms. Stanimirovic: Your Honor, if I may. Defendant — I received a message at 4:05 on Friday afternoon that he was requiring a Jury Trial.
Mr. Swindle: That is incorrect, Your Honor. Defendant’s request for Jury Trial was made previously but the Prosecutor’s Office is not ready to proceed. There’s also been a Motion for Discovery filed in this case which has not been responded to. Also, at the Arraignment in this matter I notified the Prosecutor’s Office this is the incorrect Court for this case because the Defendant is too young to be in this Court. The Prosecutor is obviously not prepared. She has misinformed this Court.
The Court: Well, Mr. Swindle, you’ve been in this Court a number of times. You have to understand that we call the juries. The Prosecutor doesn’t call the juries. We have heard nothing, whatsoever, from you or your office requesting a jury. This — if you have a problem with this Defendant being charged in Juvenile Court, as you know, or should know, you need to file a Motion to Transfer in this case which, as I understand it, there’s no Motion filed?
Mr. Swindle: There’s not, Your Honor, but there’s no response to the Motion for Discovery which has been filed.
The Court: Well, I regret that, Mr. Swindle. I’ll tell you what, this case is set for Trial today. You understand how this process works, and in my view, you are in contempt of this Court for not complying with the way we do things here, and for not requesting a jury way before today.
Mr. Swindle: It is requested in my pleadings, Your Honor.
The Court: Well, we haven’t received any of your pleadings. There’s nothing. You are in contempt of this Court. I’m gonna put you in jail for 24 hours, then you can the next time around — and I’m gonna reset this matter for November 21. And if you want Motions heard, you can file Motions and you address these issues the proper way. So you have a seat over there, Mr. Swindle.
Swindle was escorted to the Washington County Detention Center, where he served a 24 hour term of confinement. The circuit court memorialized its findings in an order entered September 10, 2007. The circuit court found:
That on the 11th day of July, 2007, the defendant, Juan Lux-Lux, appeared for arraignment in this cause with his attorney, Ken Swindle, at which time the defendant was arraigned on the charge of forgery in the first degree.
That at the conclusion of said arraignment hearing, the defendant and his attorney, Ken Swindle, were advised that this matter was set for trial for September 10, 2007.
That on the 12th day of July 2007, defendant’s attorney was once again notified by way of facsimile transmission that defendant’s case was set for trial September 10, 2007.
That on the 10th day of September, 2007, defendant appeared with his attorney, Ken Swindle, who advised the Court that the case was filed in the “wrong court” and further, that defendant demanded a jury trial.
That defendant’s attorney, Ken Swindle, did not formally raise any jurisdictional issues or communicate with the Court as to the status of defendant’s case prior to September 10, 2007.
That Deputy Prosecuting Attorney Chreea Stanimirovic, on four occasions, attempted to discuss the status of defendant’s case with his attorney, Ken Swindle, by telephone, which attempts were unsuccessful in that defendant’s attorney, Ken Swindle, did not return Deputy Prosecutor’s Stanimirovic’s telephone calls.
That on the 10th day of September, 2007, defendant’s attorney, Ken Swindle, made unprofessional and uncivil remarks in open court relating to the deputy prosecuting attorney’s representation of the State of Arkansas in this cause.
That defendant’s attorney, Ken Swindle, advised the Court that he had requested a jury in his pleadings, which representation is incorrect in that no such request appears in the pleadings.
That defendant’s attorney’s conduct as set forth above constitutes a deliberate and purposeful attempt to obstruct and interfere with the orderly and efficient administration of justice, and by reason thereof, defendant’s attorney, Ken Swindle, should be and is hereby found to be in contempt of this court and incarcerated in the Washington County Detention Center for a period of 24 hours.
Three days after the citation of contempt, the circuit court transmitted, by facsimile, its letter order resetting the trial for November 21, 2007. Again, the order included the 48-hour notification requirement and, again, Swindle filed an objection to the notice.
Swindle filed a Motion and Brief for Reconsideration of the order of contempt. In his motion, Swindle noted that his client’s request for a jury trial was guaranteed by the Arkansas Constitution and the United States Constitution. In addition, Swindle stated that his motions filed on July 13 and July 16, 2007, requested his client’s guaranteed constitutional rights. Swindle contended that the circuit court should have given him notice of a hearing concerning the telephone calls from Deputy Prosecuting Attorney Stanimirovic because the calls did not take place in the presence of the court. As to the circuit court’s finding regarding Swindle’s uncivil remarks to Stanimirovic, Swindle contended that his statements were factually true, namely that there was a failure by Stanimirovic to respond to discovery and that she was unprepared for trial on September 10, 2007.
The circuit court held a hearing on the motion for reconsideration, which was denied in an order entered October 24, 2007. Swindle appeals the order of contempt and the denial of his motion for reconsideration.
As a preliminary matter, we must address the State’s argument that this appeal is moot and should be dismissed. The State asserts that this court cannot entertain any of Swindle’s challenges to the circuit court’s order of contempt because his appeal is moot due to the fact that he has already served his sentence of confinement. Swindle contends that, notwithstanding the fact that he has served his sentence, the court should address his arguments because the circuit court’s use of an unconstitutional order is a wrong that is likely to reoccur.
The general rule regarding contempt orders is that where the terms of a contempt order have been fulfilled, the issue of the propriety of the contempt order is moot. See Conlee v. Conlee, 370 Ark. 89, 257 S.W.3d 543 (2007) (stating that any argument pertaining to seven-day sentence for criminal contempt was moot where appellant had completed the sentence and paid the fine associated with that contempt order); Cent. Emergency Med. Servs., Inc. v. State, 332 Ark. 592, 966 S.W.2d 257 (1998) (dismissing appeal from criminal contempt order as moot where emergency medical service provider paid the fine that the court imposed); Minge v. Minge, 226 Ark. 262, 289 S.W.2d 189 (1956) (holding that the issue of civil contempt was moot, where the party held in contempt for failure to pay child support paid the delinquent child support and purged the contempt).
This court has recognized two exceptions to the mootness doctrine. The first one involves issues that are capable of repetition, yet evade review, and the second one concerns issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. Delaney v. State, 356 Ark. 259, 151 S.W.3d 301 (2004). Ordinarily, mootness resolves the controversy and renders a decision unnecessary. Owens v. Taylor, 299 Ark. 373, 772 S.W.2d 596 (1989). But that choice is ours to make and where consideration of an issue that is capable of repetition, yet evades review, is present, we may elect to settle an issue, even though moot. See id.
In the instant case, we agree with the State that the question of whether the circuit court erred in holding Swindle in contempt is moot. However, because one of the bases for holding Swindle in contempt was his failure to request a jury trial 48 hours before trial is an issue capable of repetition, but that evades review, we find it necessary to address the propriety of that portion of the circuit court’s order.
The Arkansas Constitution provides that an accused in a circuit court case has a right to a trial by jury and that the right shall remain inviolate unless waived by the parties in the same manner prescribed by law. See Ark. Const, art. 2, §§ 7, 10. In order for a defendant to waive his or her right to a jury trial, he or she must do so personally either in writing or in open court and the waiver must be assented to by the prosecutor and approved by the court. Ark. R. Crim. P. 31.1, 31.2.
In every criminal trial where there is a right to a trial by jury, the court should proceed as if a jury were to be used unless waiver takes place in accordance with the law. Calnan v. State, 310 Ark. 744, 749, 841 S.W.2d 593, 596 (1992). The burden is on the trial court to assure that, if there is to be a waiver of the right to a jury trial in a criminal case, it be done in accordance with the rules by which we have implemented our Constitution. Id., 841 S.W.2d at 596. The Arkansas Constitution and the Arkansas Rules of Criminal Procedure assume a defendant will be tried by a jury unless that right is expressly waived. Id., 841 S.W.2d at 596. The law providing the manner of waiver is obviously designed to assure that the jury trial right is not forfeited by inaction on the part of the defendant. Id., 841 S.W.2d at 596.
We wish to make it clear that in the present case, the defendant was not denied his right to a jury trial. Nevertheless, we are troubled by the circuit court’s standard practice of requiring a defendant to request a jury at least 48 hours before trial, as this practice is not in accordance with the Arkansas Constitution and our rules of criminal procedure.
The right to a jury trial is a right held by a defendant, not the circuit court. A defendant is not required to request a right to which he or she is already guaranteed. In essence, the notice requirement puts the defendant in the position of forfeiting his or her right to a jury trial due to inaction. It is not proper for the circuit court to assume that a jury trial is waived due to a defendant’s inaction. Nor is defense counsel required to make this request on behalf of a defendant.
We are sensitive to the circuit court’s challenges in managing its docket in an orderly fashion; however, a defendant has a fundamental right to a trial by jury, and again, any waiver of that right must be done in accordance with our Constitution and our rules of criminal procedure. See Reaser v. State, 47 Ark. App. 7, 11, 883 S.W.2d 851, 854 (1994). Accordingly, we declare error as to the circuit court’s use of orders requiring defendants to request a jury trial 48 hours prior to trial.
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Robert L. Brown, Justice.
Appellant Gene McWhorter (Gene) appeals from an Amended and Supplemental Order by the chancery court, which determined his average net monthly income based on averaging income for the years 1995, 1996, and 1997 and assessed an arrearage for retroactive child support for February 1997 through May 31, 1998. Gene raises five points on appeal: (1) gambling winnings are not income for child-support purposes; (2) if gambling winnings are properly included for child-support purposes, these winnings should be reduced by gambling losses; (3) the chancery court’s calculations of his income are flawed for child-support purposes; (4) the chancery court’s averaging of income over three years was clearly erroneous; and (5) the chancery court’s retroactive award of child support from February 19, 1997, was also clearly erroneous. We affirm in part and reverse and remand in part.
In 1993, Gene McWhorter and appellee, Bernice McWhorter (Bernice), were divorced. Gene was a self-employed trucker with one plywood client which he serviced out of West Helena. Two children had been born of the marriage — Warren Jeffrey, who was born on February 22, 1980, and Kimberly Jean, who was born on August 26, 1983. Under their divorce decree, custody was awarded to Bernice, and Gene was ordered to pay child support. In 1995, the chancery court modified its order for child support and ordered Gene to pay child support in the amount of $465.00 per month.
On February 15, 1996, appellee filed a Motion for Increase in Child Support. Two years later, a trial was held in April 1998, and on August 18, 1998, the chancery court issued a letter opinion. After including gambling winnings but not his gambling losses, the chancellor found Gene’s yearly and monthly income for 1995, 1996, and 1997 to be as follows:
Year Yearly Income Monthly Income
1995 $ 34,306.76 $ 2,858.83
1996 $ 82,737.00 $ 6,894.00
1997 $ 58,000.00 $ 4,833.00
The court also determined that Gene’s average monthly income for the three-year period was $4,862. Based on this averaging, the court increased Gene’s monthly child-support payments to $1,017.00 per month. The court further ruled that Gene’s payment of child support to Bernice would begin in February 1997, and it allowed credit for payments actually made. The court then awarded Bernice a judgment for the difference.
Following the issuance of the chancery court’s letter opinion, but prior to judgment, Gene filed a motion for reconsideration and motion for findings pursuant to Ark. R. Civ. P. 52(a) and requested that the court revisit and enumerate the calculations- it used in determining his annual income for the three-year period. The chancery court did not rule on Gene’s motion, but instead issued its order, and he appealed to the Arkansas Court of Appeals. In that appeal, Gene made the following arguments: (1) the chancery court erred in refusing to make findings of fact under Rule 52(a) as requested; (2) the chancery court erred in considering gambling profits as income; (3) the court erred in averaging income over three years; (4) the court was clearly erroneous in arriving at his income for child-support purposes; and (5) the court erred in ordering child support to be awarded retroactively. The court of appeals held that the chancery court had failed to comply with Ark. R. Civ. P. 52(a) and reversed and remanded the case for compliance with that rule. See McWhorter v. McWhorter, 70 Ark. App. 41, 14 S.W.3d 528 (2000).
On remand, the chancery court issued a letter opinion followed by a supplemental order. In its letter opinion, the court found the following:
1) No mileage on Defendant’s personal truck was allowed as a business credit.
2) Gambling winnings were counted as spendable income[.] Defendant’s gambling losses were not considered as a deduction for child support purposes.
3) Depreciation expenses were allowed as a legitimate business expenses [sic], as adjusted by Ms. Shirley Miles, C.P.A. See Gray v. Gray, 67 Ark. App. 202 (1999).
The chancery court then found Gene’s income to be $34,306.76 for 1995, $85,914.00 for 1996, and $53,317.66 for 1997. In its Amended and Supplemental Order, the court found that Gene’s average net monthly income was $4,820.47 and that based on that calculation, retroactive child support for the period February 1997 through May 31, 1998, should be $1,011.00 per month. The court further found that commencing on June 1, 1998, for one child, child support should be $699.00, and that Gene’s child-support arrearages for the period February 1997 through May 1998 should be $8,736.00.
1. Gambling Winnings
Gene first claims in his appeal that gambling winnings are not income for child-support purposes under the definition in Arkansas Supreme Court Administrative Order No. 10. The policy reason for this is simple, he claims — gambling income is so uncertain and noncontinuous that it cannot be considered as a dependable basis for establishing child support. He contends that there is a dearth of caselaw on the issue and urges that we be guided by the definition in Administrative Order No. 10, which, he asserts, limits what constitutes income to certain defined categories.
Our standard of review for an appeal from a child-support order has been set out in a recent opinion:
We review chancery cases de novo on the record, and we will not reverse a finding of fact by the chancery court unless it is clearly erroneous. Ark. R. Civ. P. 52(a); Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). In reviewing a chancery court’s findings, we give due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Hunt v. Hunt, 341 Ark. 173, [15 S.W.3d 334]. As a rule, when the amount of child support is at issue, we will not reverse the chancellor absent an abuse of discretion. Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990). However, a chancellor’s conclusion of law is given no deference on appeal. City of Lowell v. M & N Mobile Home Park Inc., 323 Ark. 332, 916 S.W.2d 95 (1996).
Kelly v. Kelly, 341 Ark. 596, 599, 19 S.W.3d 1, 3 (2000).
In order to address whether Gene’s gambling winnings should be included as income for purposes of determining his child-support obligation, this court must first look to what constitutes “income” for child-support purposes. Our Family Law Code defines the term “income” as follows:
(4) (A) “Income” means any periodic form of payment due to an individual, regardless of the source, including wages, salaries, commissions, bonuses, workers’ compensation, disability, payments pursuant to a pension or retirement program, and interest.
Ark. Code Ann. § 9-14-201 (4) (A) (Supp. 2001). Subsection (4)(B) of that section permits this court to expand the definition “from time to time in the Guidelines for Child Support Enforcementf.]” Ark. Code Ann. § 9-14-201 (4) (B) (Supp. 2001).
That is precisely what this court did with Administrative Order No. 10. In the Administrative Order, we set forth the following definition of “income”:
Income means any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, worker’s compensation, disability, payments pursuant to a pension or retirement program, and interest less proper deductions for.
1. Federal and state income tax;
2. Withholding for Social Security (FICA), Medicare, and railroad retirement;
3. Medical insurance paid for dependant children, and
4. Presently paid support for other dependents by Court order.
Administrative Orders of the Supreme Court, No. 10, § II (emphasis added). In construing this definition, this court has said that the definition of income included in the Administrative Order “is intentionally broad and designed to encompass the widest range of sources for the support of minor children.” Davis v. Office of Child Support Enforcement, 341 Ark. 349, 358, 20 S.W.3d 273, 278 (2000).
Additional authority for this proposition can be found in the Administrative Order’s section dealing with deviation considerations. In that section, the Order sets forth the relevant factors to be considered by the court in determining the appropriate amount of child support. Those factors include: “12. Other income or assets available to support the child from whatever source.” Administrative Orders of the Supreme Court, No. 10, § V. Our court of appeals has had occasion to interpret subsection a. 12 on at least two occasions and to include as income certain funds not specifically listed in the definition of “income.” See Office of Child Support Enforcement v. Longnecker, 67 Ark. App. 215, 997 S.W.2d 445 (1999) (money received from part-time work included as income for child-support purposes); Belue v. Belue, 38 Ark. App. 81, 828 S.W.2d 855 (1992) (VA benefits included as income for child-support calculations). See also County of Contra Costa v. Lemon, 205 Cal. App. 3d 683, 252 Cal. Rptr. 455 (1988) (court interpreted “income from whatever source derived” to include lottery winnings though funds were not listed as a specific category of “income”). There is no question then that both this court and our court of appeals have interpreted the term “income” broadly for purposes of arriving at proper child support. Moreover, we are influenced by the fact that the Internal Revenue Code includes gambling winnings as part of a person’s gross income for federal income tax purposes. See 26 U.S.C.A. § 61; see also Lyszkowski v. Commissioner of Internal Revenue, 69 T.C.M. (CCH) 2751 (1995); Hall v. Commissioner of Internal Revenue, 44 T.C.M. (CCH) 256 (1982); Rev. Rul. 83-130, 1983-2 C.B. 148.
Gene urges this court to follow the maxim of expressio unius est exclusio alterius, which means that the expression of one thing implies the exclusion of another. See Black’s Law Dictionary 602 (7th ed. 1999). He raises this maxim in support of his argument that the items listed in the definition of “income” in the Administrative Order are exclusive of all others. We disagree. As already discussed in this opinion, the policy of this state is to interpret “income” broadly for the benefit of the child. Subsection a. 12 of Section V of the Administrative Order referring to other income from whatever source confirms that. We decline to limit income only to those items listed in the definition but rather consider the list of income sources as illustrative rather than exhaustive or exclusive. See, e.g., Masterson v. Stambuck, 321 Ark. 391, 902 S.W.2d 803 (1995); County of Contra Costa v. Lemon, supra.
We hold that the chancery court did not abuse its discretion in including gambling winnings as income for purposes of determining child support under the Administrative Order.
II. Gambling Losses
Gene next contends that if gambling winnings are to be included as income, then gambling losses should be credited against those winnings up to the amount of the winnings, as provided in the Internal Revenue Code. Had the chancery court permitted a credit of gambling losses against gambling winnings for purposes of determining income, Gene argues, his disposable income would have been significantly reduced.
Year Net Gain Due to Gambling
1995 Winnings: $ 15,900.00
Losses: — 14,635.00
Net Gain: $ 1,265.00
1996 Winnings: $ 57,800.00
Losses: - 45,439.00
Net Gain: $ 12,361.00
1997 Winnings: $ 20,900.00
Losses: - 20,900.00
Net Gain: $ .00
Bernice counters that the Administrative Order does not provide for that but rather limits deductions from income under § II to the following categories:
(1) federal and state income tax;
(2) withholding for Social Security, medicare, and railroad retirement;
(3) medical insurance paid for dependant children; and
(4) presently paid child support for other dependent children by court order.
Gene’s argument has merit. As was the case for determining income for child-support purposes, we do not view this list of deductions in the Administrative Order as exhaustive or exclusive. See, e.g., Masterson v. Stambuck, supra. We further observe that the Administrative Order provides as follows with regard to self-employed • persons:
For self-employed payors, support shall be calculated based on last year’s federal and state income tax returns and the quarterly estimates for the current year. Also the court shall consider the amount the payor is capable of earning or a net worth approach based on property, life-style, etc.
Administrative Orders of the Supreme Court, No. 10, § IIIc. This subsection brings into play consideration of state and federal tax returns for self-employed individuals, which would include Gene’s handling of his gambling winnings and losses in his 1040 tax returns for 1995, 1996, and 1997. In determining net gambling income for federal income tax purposes, the Internal Revenue Code provides that gambling losses can be deducted up to the amount of gambling winnings. See 26 U.S.C.A. § 165(d).
The federal income tax treatment of gambling gains and losses seems appropriate for child-support calculations in that our goal should be to decide what constitutes disposable income of the support obligor. In Stepp v. Gray, 58 Ark. App. 229, 947 S.W.2d 798 (1997), our court of appeals considered whether a depreciation deduction against income from rental properties should be denied in determining the true disposable income of the child-support payor. In doing so, the appellate court observed:
Surely, determining the “expendable income” of a child-support payor is still the ultimate task of the chancellor following the adoption of the child-support guidelines in 1989.
58 Ark. App. at 236, 947 S.W.2d at 801. We agree with the court of appeals that determining expendable income is the ultimate objective of our chancery courts. For purposes of the instant case, the true expendable or disposable income can only be arrived at by crediting gambling losses only to the extent of winnings. We reverse the chancery court on this point and remand for further proceedings to prove gambling losses for the calendar years in question. In this regard, we note that while Gene’s 1040 tax returns may be a starting point, documentary evidence must be presented to the chancery court to prove his gambling losses.
III. Income Calculations
Gene next contends that the chancery court’s income calculations for child-support purposes are flawed for several reasons. First, he contends that the court included gambling winnings without crediting gambling loses, as previously discussed in this opinion. In addition, he maintains that the chancery court erred in adopting Bernice’s accountant’s figures instead of those by his accountant and that deductions for depreciation and other truck expenses were not fully allowed. All of this, he maintains, skewed the bottom line for disposable income and falsely depicted his income as increasing substantially when, in fact, gross income from his trucking business had been declining. He further claims that by not including gambling losses in its income calculations, the chancery court deviated from the Family Support Chart and needed to explain the deviation with written findings. He cites Stepp v. Gray, supra, for this proposition.
We have previously held in this opinion that the chancery court must recompute Gene’s disposable income based on gambling losses, and we need not consider that issue again under this point. Beyond that, Gene is simply not convincing in showing how the chancery court clearly erred in calculating his expendable income so as to require additional written findings under the Administrative Order.
IV Three-Year Averaging
Gene next objects to the chancery court’s three-year averaging of annual income in determining child support. He emphasizes that Administrative Order No. 10 does not sanction this and, indeed, provides that for self-employed payors, support must be calculated “based on last year’s federal and state income tax returns and the quarterly estimates for the current year.” Administrative Orders of the Supreme Court No. 10, § IIIc. Bernice’s riposte is that we should not address this issue because it is being raised for the first time on appeal. Specifically, Bernice claims that Gene did not object to three-year averaging in 1995 when it benefitted him and he should not be permitted to object now when the calculations work to his detriment.
It does not appear that this issue was presented to the chancery court for resolution before the first appeal. Following the chancery court’s letter opinion in 1998 but prior to entry of judgment, Gene moved for reconsideration and for additional findings of fact under Ark. R. Civ. P. 52(a). He failed, however, to question the court’s three-year averaging of income at that time. In the subsequent appeal to the court of appeals, he did raise averaging as an issue, in addition to the chancery court’s lapse in not making additional Rule 52(a) findings. The court of appeals reversed on the Rule 52(a) issue and remanded the matter. Only on remand did Gene raise the issue of averaging to the chancery court. At that juncture, it was simply too late to raise a new issue to the chancery court. See Collins v. Keller, 333 Ark. 238, 969 S.W.2d 621 (1998) (failure to object to the trial court’s findings waives the opportunity to raise the issue involved on appeal).
This issue was not preserved for our review.
V. Retroactive Award
For his final point, Gene contends that the retroactive award of child support back to February 1997 constituted an abuse of discretion. He acknowledges that a retroactive modification of child support may be appropriate in some cases under Grable v. Grable, 307 Ark. 410, 821 S.W.2d 16 (1991), but he urges that a chancery court may not make the retroactive period earlier than the trial date without proof of the needs of the children. Here, the trial commenced on April 2, 1998. That, according to Gene, should be the starting point for a retroactive modification.
We disagree. In Grable v. Grable, supra, this court interpreted Ark. Code Ann. § 9-14-234(b) (Repl. 1991), in light of pertinent federal rules and concluded that the statute only prohibited modifications of child support which are made retroactive prior to the filing of the modification petition. In the case at hand, the motion for increase in child support was filed on February 15, 1996, which is clearly before the starting point for the modified support ordered to begin in February 1997. Because of the delay in resolving the motion, the chancery court stated it considered February 1997 a fairer and more appropriate beginning for modified support than February 1996. We hold that the chancery court did not abuse its discretion in starting modified child support in February 1997.
We issue one caveat for purposes of remand. Though the issue of three-year averaging was not preserved for purposes of this appeal, recalculations of disposable income are mandated by this opinion. For purposes of those recalculations, under the Administrative Order, child support is determined based on the previous year’s disposable income and the quarterly estimates for the current year. See Administrative Orders of the Supreme Court No. 10, § IIIc.
Affirmed in part; reversed and remanded in part.
This version of the definition of income was adopted by per curiam order on October 1, 1997. See In re: Administrative Order Number 10: Arkansas Child Support Guidelines, 329 Ark. 668 (1997). | [
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Per Curiam.
Orange Edward Brady was convicted of aggravated robbery and theft of property, and he subsequently pled guilty to being a felon in possession of a firearm. He received concurrent sentences of twenty years’, ten years’, and ten years’ imprisonment. The court of appeals affirmed in an unpublished opinion. Brady v. State, CACR 99-155 (Ark. App. Oct. 6, 1999).
Appellant, acting pro se, filed a timely petition for postconviction relief pursuant to Ark. R. Cr. P. 37 raising claims related to his jury trial convictions only. On April 13, 2000, the circuit court denied relief on each of appellant’s claims but one. The circuit court set an evidentiary hearing to consider appellant’s remaining claim that his trial counsel was ineffective in failing to present alibi witnesses. Thomas B. Devine, III, was subsequently appointed to represent appellant at the hearing on the remaining claim.
The circuit court conducted the hearing on June 2, 2000, and then denied relief in a June 21, 2000, order. Mr. Devine’s subsequent motion to the circuit court to be relieved as appellant’s counsel was denied at a July 5, 2000, hearing. That same day, Mr. Devine filed a notice of appeal from the June 2 hearing and the circuit court’s June 21 order. He then timely lodged the record on appeal in this court, and filed a motion to withdraw and an Anders brief stating that there was no merit to any argument arising from the circuit court’s denial of postconviction relief. In doing so, Mr. Devine only addressed the single claim of ineffective assistance concerning the alibi witnesses, and did not abstract appellant’s Rule 37 petition in its entirety. Appellant was provided a copy of counsel’s brief, and filed points for reversal for the court’s consideration pursuant to Ark. Sup. Ct. R. 4-3 (j) (2). Appellant’s points for reversal raise, in part, some of the claims raised in his Rule 37 petition that were denied by the circuit court on April 13. The State filed a brief in response to appellant’s points for reversal. Neither appellant nor the State submitted a supplemental abstract of the Rule 37 petition. Because Mr. Devine, once he filed the notice of appeal, was required by Ark. Sup. Ct. R. 4 — 3(j)(1) to abstract and discuss the denial of each of the claims raised in appellant’s petition, we order rebriefing in this case for compliance with the rule.
The circuit court’s April 13 order denying all but one of appellant’s claims was an intermediate order, not a final order from which appeal could be taken. This court has explained:
The requirement that an order be final to be appealable is a jurisdictional requirement. Wilburn v. Keenan Cos., Inc., 297 Ark. 74, 759 S.W.2d 554 (1988). The purpose of the finality requirement is to avoid piecemeal litigation. Lamb v. JFM, Inc., 311 Ark. 89, 842 S.W.2d 10 (1992). An order is final and appealable if it dismisses the parties from the court, discharges them from the action, or concludes their rights to the subject matter in controversy. Department of Human Services v. Lopez, 302 Ark. 154, 787 S.W.2d 686 (1990). The order must put the judge’s directive into execution, ending the litigation, or a separable branch of it. Festinger v. Kantor, 264 Ark. 275, 571 S.W.2d 82 (1978).
Payne v. State, 333 Ark. 154, 158, 968 S.W.2d 59, 60-61 (1998)(quoting K.W. v. State, 327 Ark. 205, 207, 937 S.W.2d 658, 659-60 (1997)). An order is final and appealable if it dismisses the parties from the court, discharges them from the action, or concludes their rights to the subject matter in controversy. Although the circuit court denied all but one of appellant’s claims in its April 13 order, it also retained jurisdiction, set an evidentiary hearing on the remaining claim, and appointed Mr. Devine to represent appellant. Thus, the circuit court’s June 21 order denying the remaining alibi witness claim constituted the final appealable order in this case.
“An appeal from any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment.” Ark. R. App. P. — Civ. 2(b). Rule 37 proceedings are civil in nature, Public Defender Comm. v. Greene County, 343 Ark. 49, 55, 32 S.W.3d 470, 474 (2000), and this court has referred to and applied the Rules of Appellate Procedure — Civil when necessary in criminal appeals. Byndom v. State, 344 Ark. 391, 404, 39 S.W.3d 781, 798 (2001). Applying Ark. R. App. P — Civ. 2(b) to this case, Mr. Devine’s notice of appeal from the evidentiary hearing and the circuit court’s final order also brought up for review the circuit court’s intermediate order.
Anders v. California, 386 U.S. 738 (1967) and Arkansas Supreme Court Rule 4-3(j)(1) sets requirements for the withdrawal of counsel for a defendant in a criminal case after a notice of appeal has been filed on the basis that an appeal is without merit. Although such a “no-merit” brief is typically filed in a direct appeal from a judgment, we have also allowed the filing of no-merit briefs in postconviction appeals. Matthews v. State, 332 Ark. 661, 664, 966 S.W.2d 888, 889 (1998). Counsel’s “no-merit brief’ must contain an argument section that consists of a list of all rulings adverse to the defendant made by the trial court on all objections, motions, and requests with an explanation as to why each adverse ruling is not a meritorious ground for reversal. Ark. Sup. Ct. R. 4-30)(1). The abstract must also contain each adverse ruling. Id.
Mr. Devine’s no-merit brief did not meet the requirements of Rule 4-30)(1) because he failed to abstract and list each ruling adverse to appellant, and to explain why those rulings did not provide meritorious ground for reversal. Instead, he submitted a partial abstract and only addressed the alibi witness issue that was the basis for the June 2 hearing. This court cannot affirm an appellant’s conviction without any discussion as to why a particular ruling by the trial court should not be meritorious grounds for reversal. Dewberry v. State, 341 Ark. 170, 172, 15 S.W.3d 671, 672 (2000). “Without an adequate brief which contains an abstract of the record, we cannot make a reasoned decision on whether counsel is entitled to be relieved on the ground that the appeal is without merit.” Mitchell v. State, 327 Ark. 285, 286-87, 938 S.W.2d 814, 815 (1997). Accordingly, counsel is directed to file a brief which complies with Ark. Sup. Ct. R. 4-30)(1). When the brief is filed, the motion and brief will be forwarded by the Clerk to the appellant so that he may raise within thirty days any points he chooses in accordance with Ark. Sup. Ct. R. 4-30) (2).
Rebriefing ordered. | [
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W.H. “Dub” Arnold, Chief Justice.
On May 4, 1990, 22-month-old James D. (J.D.) Henderson suffered severe scald burns while in the bathtub of the apartment in which he lived. J.D. suffered third-degree scald burns over 50 percent of his body, requiring ten months of hospitalization. While his medical bills total almost one million dollars already, J.D. continues to suffer pulmonary problems, mental retardation, subsequent scarring, and other disabilities caused by the burns.
J.D. had been placed in the bathtub by his mother, Yolanda Henderson, in, according to her, about one inch of tepid water. She maintains that she ran out of the bathroom to grab a towel for J.D.; and, while getting the towel, she heard J.D. scream. She states that she immediately ran to the bathroom where she found the tap water running full blast, lifted J.D. out of the tub, and immediately called 911.
Appellants sued the Housing Authority of the City of North Little Rock/Audubon Indemnity Company for failure to maintain and properly inspect the water heater in the Henderson apartment building and for failure to warn Ms. Henderson of the risks and dangers associated with the residential water heater. Appellants sued Rheem Manufacturing Company (Rheem) for distributing a defective residential water heater and for failing to warn of the dangers associated with the “liquid fire” coming out of J.D.’s faucet.
Appellants also sued NorAm, the provider of gas service to appellants’ residence because, appellants contend, in providing gas NorAm failed to warn its customers and intended users of the dangers created by scalding tap water. Finally, appellants sued Crane Company (Crane), the manufacturer of the hot water control handle in the appellants’ apartment, under theories of negligence, strict liability, and breach of warranties.
The trial court found that J.D.’s mother’s actions constituted an intervening cause which barred the minor’s claims against the landlord, the fixture manufacturer, the water heater manufacturer, and the utility. Appellants appealed to the Arkansas Court of Appeals who, by per curiam, ordered appellants to revise their brief and file a substitute brief due to flágrant deficiencies in their abstract. The per curiam issued by the court of appeals noted the particular deficiencies and gave specific guidance of how to cure those deficiencies. Appellants then filed a substituted brief, and the case was assigned to this Court. This appeal asserts that the trial court erred in granting summary judgment in favor of the appellees. We hold that appellants’ abstract continues to be flagrantly deficient and, therefore, affirm the case.
It is well established that the abstract is the record for purposes of appeal, and the burden is on the appealing party to provide both a sufficient record and abstract for appellate review. See Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999); City of West Memphis v. City of Marion, 332 Ark. 421, 965 S.W.2d 776 (1998). Our review on appeal is limited to the record as abstracted, and we will not reach the merits of an issue when the documents or proceedings that are necessary for an understanding of the issue are not abstracted. Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000); Luttrell v. City of Conway, 339 Ark. 408, 5 S.W.3d 464 (1999) . Rule 4-2(a)(6) of the Arkansas Supreme Court Rules requires that an abstract contain “such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision.” A transcript of a hearing on a motion that is the subject of an appeal is a material part of the proceedings that must be abstracted. See Warnock, 336 Ark. 506, 988 S.W.2d 7. The purpose of an abstract is to give us an understanding of the issues on appeal. City of West Memphis, 332 Ark. 421, 965 S.W.2d 776. We may affirm for noncompliance with the rule where there is a flagrantly deficient abstract. Id. The inherent logic of this rule is that there are seven justices on our Court, but only one record. Cosgrove v. City of West Memphis, 327 Ark. 324, 938 S.W.2d 827 (1997). Mere references to the transcript scattered in the brief are insufficient. Adams v. State, 276 Ark. 18, 631 S.W.2d 828 (1982).
It is clear from the abstract that appellants are not in compliance with the rule. First, appellants have simply photocopied exhibits that total over 250 pages and have attached them to the addendum, providing only a short description of the exhibits in the abstract. This Court has repeatedly held that where a matter can be reduced to words, it must be abstracted in words. In the Matter of the Estate of Brumley, 323 Ark. 431, 914 S.W.2d 735 (1996). A review of the materials in appellants’ addendum reveal that most of the documents, with the exception of a scald chart and a copy of an advertisement, are either articles or studies that can readily be reduced to words and properly abstracted. This Court has previously stricken an appellant’s exhibits where they could be abstracted in words but were not. See Mary Kay, Inc. v. Isbell, 336 Ark. 374, 986 S.W.2d 90 (1999).
One example of appellants’ shortcut approach to compliance, is their reliance on a ninety-two page article entitled “Scald Burn Prevention Strategy.” The abstract of this article consists of three lines. Another example is the abstract of the dwelling lease executed by Yolanda Henderson when she moved into Hemlock Court Apartments. Appellants chose to abstract only paragraph seven of the lease agreement but then failed to abstract all the relevant verbiage from that one paragraph.
More troubling than appellants’ abbreviated abstracting of these exhibits is the fact that several times appellants make a statement in their argument, cite to one of these exhibits, and then fail to even abstract that portion of the exhibit upon which they rely. If only three lines of an article are relevant to appellants’ argument on appeal, the trial court was given the entire article. This Court has no way of knowing if the trial court limited its review to the small, three-line excerpts now abstracted by appellants.
Compounding the problem is the fact that other abstract deficiencies exist, as well. Appellants make no reference in their argument to any pages in the abstract; rather, they simply cite to pages in the transcript and, even then, appellants fail to provide pinpoint citations to the record, instead simply noting where such material begins and ends. We have held that an appellant violates the requirements of Rule 4-2(a)(6) where the brief contains only transcript citations and fails to refer the Court to the appropriate pages in the abstract. City of West Memphis, 332 Ark. 421, 965 S.W.2d 776; Porter v. Porter, 329 Ark. 42, 945 S.W.2d 376 (1997); and Boren v. Worthen Nat’l Bank, 324 Ark. 416, 921 S.W.2d 934 (1996).
In addition to the deficiencies noted above, the materials that actually were abstracted by appellants were frequently not abstracted in compliance with our rules. For example, there are numerous interrogatories and requests for admission found in the abstract, but they are condensed to a paragraph form and contain only the answers. Such matters are properly abstracted by setting out the question, to be immediately followed by the response. Moreover, the abstract is intended to be an impartial condensation of relevant materials contained in the record. Blunt, 342 Ark. 662, 30 S.W.3d 737 (2001). Here, appellants have consistently failed to abstract relevant materials that happen to be damaging to their case. A prime example of this is their failure to abstract that portion of Yolanda Henderson’s deposition where she makes several critical admissions. This information was only provided in supplemental abstracts filed by appellees. A comparison of the abstract of the motion hearing with the actual transcript of that hearing also reveals that appellants deleted portions of the arguments made by counsel, particularly those arguments where counsel notified the court of reliance on specific cases. Appellants likewise failed to abstract the entire ruling made by the trial court from the bench.
In short, it is clear that appellants’ abstract is flagrantly deficient. It is impossible for u? to be certain that we have the benefit of the same materials relied upon by the trial court in granting summary judgment before us now, in attempting to review the propriety of such a ruling. As such, we affirm the case based upon the deficiency of the abstract.
Affirmed.
GLAZE, J., not participating.
Appellees had filed a motion to strike appellants’ substituted brief and dismiss the appeal, based upon appellants’ failure to abide by the per curiam issued by the court of appeals ordering appellants to cure certain deficiencies in their abstract. Based upon our holding affirming the case for deficient abstract, appellees’ motion to strike is moot. | [
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Donald L. Corbin, Justice.
Appellant Rodney Bunch was convicted by a jury in the Pulaski County Circuit Court of four counts of aggravated robbery, three counts of theft of property, and one count of first-degree sexual abuse. Appellant was convicted as a habitual offender and sentenced to a term of life imprisonment under the enhanced sentencing statute, codified at Ark. Code Ann. § 5-4-501 (d) (Repl. 1997). Appellant raises the following two points on appeal: (1) that the trial court erred in failing to suppress his custodial statement; and (2) that the sentence enhancement provision of section 5-4-501 (d) is unconstitutional as applied to him. We find no error and affirm.
Appellant’s convictions stem from an armed robbery of Salon MDC in Little Rock that occurred on July 16, 1998. According to witnesses, a man carrying a towel entered the salon and asked for directions to Chenal Parkway. This same man returned approximately ten to fifteen minutes later, wearing a different shirt, a red bandanna over his face, and carrying a gun in his hand. These witnesses later identified Appellant as the robber. After demanding that the people in the salon empty their purses, Appellant ordered the employees and customers to go to a back room in the salon. Appellant held one of the employees back, and while holding a gun to her forehead, ordered her to remove her clothing. He then reached his hand into the victim’s panties, penetrating her vagina with his fingers. Soon after, Appellant fled the salon.
After a witness provided police with a temporary license plate number for the suspect’s car, they were able to develop Appellant as a suspect in the Salon MDC robbery, as well as a string of other local robberies. On August 5, 1998, Detective Todd Armstrong of the Little Rock Police Department left one of his business cards with Appellant’s mother and asked that Appellant contact him. Appellant then contacted police, who informed him that they would like to talk to him about some robberies. After Appellant refused to come to the police station, authorities agreed to meet him at the intersection of Twelfth Street and Fair Park Boulevard. Armstrong, however, proceeded to the address where phone records indicated Appellant was located. After witnessing Appellant leave the house, Armstrong began to follow him. When Armstrong pulled up beside Appellant’s car, he identified himself as a police officer and stated that he wanted to talk with Appellant. Appellant then accelerated, and a high-speed chase ensued for a short time until Appellant eventually slowed down and police pulled him over to the side of the road. At that time, police took Appellant into custody on outstanding traffic warrants.
Following his arrest, Appellant was placed in an interview room where Armstrong and Detective Lynda Keel attempted to question him with regard to the robberies. During this attempted interview, Appellant became belligerent and refused to answer any questions, or even state his name. Police officials then had him transported to the county jail at approximately 4:05 a.m on August 6. At approximately 5:00 p.m. on that same day, Appellant was brought back to police headquarters to again be questioned regarding the string of burglaries. Prior to this interview, Armstrong read Appellant his rights and obtained his signature on the waiver-of-rights form. According to Armstrong, Appellant was cooperative during this interview, and ultimately gave a tape-recorded statement detailing his involvement in the robberies.
Prior to his trial, an omnibus hearing was held to consider several pretrial motions filed by Appellant. In considering Appellant’s motion to suppress his custodial statement, the trial court heard testimony from witnesses of the robbery, police officers involved in the investigation, and Appellant. During this hearing, Armstrong testified that Appellant appeared to understand the rights that were read to him, and did not seem to be under the influence of any drugs or alcohol. He also stated that Appellant never requested counsel during the interview, and denied that Appellant was ever subjected to physical threat or any form of coercion in an attempt to obtain a confession. Armstrong’s testimony was corroborated by Keel. The only evidence offered by Appellant in support of his claim was his own testimony that the officers handcuffed him to a table in the interview room, and then hit him, cursed at him, and spit at him. According to Appellant, he made the incriminating statement because he feared that his life was in imminent danger. After hearing all the testimony and arguments of counsel, the trial court denied Appellant’s motion to suppress.
A jury trial was held on July 27, 2000, during which Appellant renewed his objection to the State’s introduction of his custodial statement, and it was again denied. Appellant also filed a motion to declare section 5-4-501 (d) unconstitutional as it applied to him. This same motion had been filed by Appellant in a prior, unrelated criminal proceeding. Both times, it was denied by the trial court. Appellant was convicted by the jury of aggravated robbery, theft of property, and first-degree sexual abuse and was sentenced to life imprisonment. This appeal followed.
I. Suppression of Custodial Statement
For his first point on appeal, Appellant argues that the trial court erred in failing to suppress his custodial statement. Appellant alleges several different violations in support of suppression of that statement. First, he argues that the police questioned him after he invoked his right to remain silent in violation of Miranda v. Arizona, 384 U.S. 436 (1966). Second, Appellant contends that his statement was not made voluntarily. Finally, Appellant contends that he did not knowingly and intelligently waive his rights under Miranda. Each of Appellant’s arguments is without merit.
The proper standard of review for a motion to suppress was set forth by this court in Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998):
In reviewing a trial judge’s ruling on a motion to suppress, we make an independent determination based upon the totahty of the circumstances, viewing the evidence in a light most favorable to the State, and we reverse only if the ruling is clearly against the preponderance of the evidence. Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998). The credibility of witnesses who testify at a suppression hearing about the circumstances surrounding the appellant’s in-custody confession is for the trial judge to determine, and we defer to the superior position of the trial judge in matters of credibility. Id. Conflicts in the testimony are for the trial judge to resolve, and the judge is not required to believe the testimony of any witness, especially that of the accused since he or she is the person most interested in the outcome of the proceedings. Id.
Id. at 403-04, 983 S.W.2d at 401.
1. Right to Remain Silent
The issue of admissibility of statements obtained after a person has previously decided to remain silent was addressed by the United States Supreme Court in Michigan v. Mosley, 423 U.S. 96, 104 (1975), wherein the Court held that the admissibility of such statements “depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” (Footnote omitted.) The Court explained:
A reasonable and faithful interpretation of the Miranda opinion must rest on the intention of the Court in that case to adopt “fully effective means ... to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored. . . .” 384 U.S., at 479. The critical safeguard identified in the passage at issue is a person’s “right to cut off questioning.” Id., at 474. Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person’s exercise of that option counteracts the coercive pressures of the custodial setting.
Id. at 103-04.
This court first addressed this issue in Hatley v. State, 289 Ark. 130, 709 S.W.2d 812 (1986), and rejected a literal reading of Miranda that would require “a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances.” Id. at 133, 709 S.W.2d at 814 (quoting Mosley, 423 U.S. at 102). This court went on to explain:
To “scrupulously honor” the defendant’s “right to cut off questioning” means simply that once the defendant has invoked his right to remain silent, his will to exercise that right will remain undisturbed; there must be no attempt to undermine his will and he must be secure in the knowledge he is under no compulsion to respond to any questions. Such a determination will, of course, depend on the facts in each case relative to the conduct of the police and of the defendant.
Id. at 135, 709 S.W.2d at 815. Recognizing the Mosley court’s distinction between interrogation after a request for counsel and interrogation after refusing to make a statement, this court concluded that as long as there is no evidence of coercion, a statement made voluntarily will be admissible even though a defendant previously refused to answer questions. Id.
Based upon the particular facts of this case, we conclude that there was no evidence to indicate that police failed to “scrupulously honor” Appellant’s “right to cut off questioning.” Police initially attempted to question Appellant following his arrest on August 6, but due to Appellant’s belligerent demeanor and refusal to answer questions, he was transported to the county jail. Approximately twelve hours lapsed before police again attempted to question Appellant. At that time, he was transported back to police headquarters and again placed in an interview room where he was given a meal and a soft drink. Prior to questioning Appellant, Armstrong informed him of his Miranda rights and obtained his signature on a waiver form. According to Armstrong, Appellant was fairly reserved and cooperative during this second interview. Armstrong also stated that at no time did Appellant request an attorney.
The only evidence that Appellant felt compelled to answer questions was his own self-serving testimony that he was subjected to physical threats by the officers. As previously stated, where there is a conflict in the testimony regarding the taking of a custodial statement, it is within the province of the trial court to resolve the issue of the credibility of witnesses. Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001); Wright, 335 Ark. 395, 983 S.W.2d 397. In addition, the trial judge is not required to believe the testimony of any witness, particularly that of the accused since he or she is the person most interested in the outcome of the proceedings. Id.
Finally, the fact that both interrogations focused on the same crime, the armed robbery of Salon MDC, is irrelevant in our analysis of this issue. This court stated in Hatley, 289 Ark. 130, 709 S.W.2d 812, that the Supreme Court’s emphasis on interrogation about a different crime was misplaced. Rather, the primary consideration is the “strict adherence to its dictates of scrupulously honoring the defendant’s right to remain silent.” Id. at 135, 709 S.W.2d at 815. See also Wright, 335 Ark. 395, 983 S.W.2d 397. We therefore conclude that there was no violation of Appellant’s constitutional rights because the police scrupulously honored Appellant’s initial request to remain silent.
2. Voluntariness of Custodial Statement
Next, we turn to Appellant’s allegation that his statement was not voluntary. The law regarding voluntariness of a confession was set out by this court in Wright, 335 Ark. 395, 983 S.W.2d 397:
A custodial confession is presumptively involuntary and the burden is on the State to show that the waiver and confession was voluntarily made. Clark v. State, 328 Ark. 501, 944 S.W.2d 533 (1997). In examining the voluntariness of confessions, this court makes an independent determination based on the totality of the circumstances, and reverses the trial court only if its decision was clearly erroneous. Kennedy v. State, 325 Ark. 3, 923 S.W.2d 274 (1996). As explained in Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992), the inquiry into the validity of the defendants waiver has two separate components: whether the waiver was voluntary, and whether the waiver was knowingly and intelligently made. In determining voluntariness, we consider the following factors: age, education, and intelligence of the accused, lack of advice as to his constitutional rights, length of detention, the repeated and prolonged nature of questioning, or the use of physical punishment. Hood v. State, 329 Ark. 21, 947 S.W.2d 328 (1997). Other relevant factors in considering the totality of the circumstances include the statements made by the interrogating officer and the vulnerability of the defendant. Id. In addition, the accused must have a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it in order for his waiver to be knowingly and intelligently made. Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996).
Id. at 407-08, 983 S.W.2d at 403 (quoting Davis v. State, 330 Ark. 76, 83-84, 953 S.W.2d 559, 562-63 (1997)).
Here, Armstrong testified that Appellant told him that he had completed the eleventh grade, had received his GED, and could read and write. Armstrong also stated that Appellant, who was calm during the second interrogation, did not appear to be under the influence of any drugs or alcohol. In addition, the second interrogation lasted only twelve minutes.
Appellant testified that he only confessed after being physically abused. This testimony was disputed by both Armstrong and Keel. Appellant also stated that Armstrong did not advise him of his rights until after he had already given his statement. The tape recording of Appellant’s statement, however, indicates that at the beginning of the interview Armstrong asked Appellant if he had been informed of his rights and Appellant responded affirmatively. Moreover, Armstrong inquired at least three separate times if Appellant understood those rights and each time Appellant stated that he did understand them. Again, resolving the credibility of witnesses was a matter within the province of the trial court. See Wright, 335 Ark. 395, 983 S.W.2d 397. Considering the totality of the circumstances, we conclude that Appellant’s custodial statement was given voluntarily.
3. Knowing and Intelligent Waiver
Finally, Appellant contends that his statement should have been suppressed because he did not knowingly and intelligently waive his Miranda rights. Appellant never raised this specific argument below, nor did the trial court ever rule on such an allegation. It is well settled that where an appellant does not advance an argument to the trial court as part of the motion to suppress, we will not consider it for the first time on appeal. See McFerrin v. State, 344 Ark. 671, 42 S.W.3d 529 (2001); Stephens v. State, 342 Ark. 151, 28 S.W.3d 260 (2000), cert. denied, _ U.S. _, 121 S. Ct. 1206 (2001). Accordingly, we affirm the trial court’s ruling to admit Appellant’s statement.
II. Section 5-4-501(d)(1) Unconstitutional
For his final point on appeal, Appellant argues that section 5-4-501 (d)(1) (A) impermissibly conflicts with the provisions of Ark. Code Ann. § 5-4-501 (d)(3) (A) (Repl. 1997), thus depriving him of his constitutional rights. Subsection 5-4-501 (d)(1) (A) calls for the imposition of a fife sentence for a defendant convicted of a specified felony who has been previously convicted of two or more such felonies, while subsection 5-4-501 (d)(3) (A) allows for a statutory sentencing range. Appellant raised this identical argument in a previous appeal stemming from an unrelated criminal conviction. See Bunch v. State, 344 Ark. 730, 43 S.W.3d 132 (2001). We reject Appellant’s argument on this point for the same reasons announced in that previous appeal, and we affirm the trial court’s ruling that the statute is not unconstitutional.
III. 4-3 (h) Review
In accordance with Rule 4-3 (h) of the Arkansas Supreme Court Rules, the transcript of the record before us has been reviewed for adverse rulings objected to by Appellant but not argued on appeal, and no reversible errors were found. Accordingly, the judgment of conviction is affirmed. | [
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Per Curiam.
Appellant Jacinto Henderson, by and through his attorney, has filed a motion for rule on clerk. Appellant’s attorney, Q. Byrum Hurst, Jr., admits in his motion that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. Jones v. State, 338 Ark. 29, 992 S.W.2d 85 (1999) (per curiam) (citing Terry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986)(per curiam)).
The motion for rule on the clerk is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979)(per curiam). | [
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Tom Glaze, Justice.
Charles Barnes was convicted of capital murder and sentenced to death for the 1997 killings of Eula and Dorothy Whidock. He raises nine points on appeal, none of which has merit.
For his first issue, Barnes challenges the sufficiency of the evidence, contending only that his conviction was unsupported by substantial evidence because it was based solely on the statement of an accomplice, Melanie Roberts, and his own inculpatory statements. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001). We affirm a conviction if substantial evidence exists to support it. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000).
Where, however, the challenge is limited to the sufficiency of the evidence corroborating the defendant’s confession, our review is governed by Ark. Code Ann. § 16-89-111(d) (1987), which provides that “[a] confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed.” Tinsley v. State, 338 Ark. 342, 993 S.W.2d 898 (1999). This requirement for other proof, sometimes referred to as the corpus delicti rule, mandates only proof that the offense occurred and nothing more. Id. In other words, under the corpus delicti rule, the State must prove (1) the existence of an injury or harm constituting a crime and (2) that the injury or harm was caused by someone’s criminal activity. Id. (citing Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996)). It is not necessary to establish any further connection between the crime and the particular defendant. Id.-, Rucker v. State, 320 Ark. 643, 899 S.W.2d 447 (1995)). Accordingly, we must determine whether, setting aside Barnes’s extrajudicial confession, the evidence demonstrates that the crime of capital murder was committed by someone.
The evidence introduced at trial showed the following series of events. On August 10, 1997, the Sharp County Sheriff’s Office received a call requesting a welfare check on Eula and Dorothy Whitlock, who were mother and daughter, at their mobile home located 6.2 miles south of Ash Flat. Deputy Sheriff Dwayne Flolcomb went to the residence and found that both doors were locked, but the bedroom window on the west end of the home was open. Holcomb went to one of the windows on the east end of the living room; when he looked in, he saw the furniture was turned over and the house was in disarray. He also saw the body of Eula, age 94, lying on the floor. Holcomb then forced the trailer door open and went inside, where he found the body of 70-year-old Dorothy in the hallway outside the bedroom. Both women had wounds on their heads and necks. Autopsies of both women showed that Dorothy had died of multiple blunt and sharp-force injuries to the head and neck, including a skull fracture caused most likely by a hatchet, as well as stabbing and cutting wounds to her neck. Eula died of blunt force injuries to her head and neck, including a fractured jaw and a “near complete transection” of the cervical vertebral body.
On May 7, 1998, investigators Dale Weaver and Joe Stidman went to interview inmates at the Van Burén County Jail. After the investigators left, Melanie Roberts asked fellow inmates Diana Gates, Susan Bowman, and Alexandria Fore if Weaver and Stidman had asked them about the murders of two elderly ladies at Ásh Flat. Roberts then told Gates that she and her then-boyfriend, Charles Barnes, had committed the burglary and murders. She also told one of the matrons at the jail that she and Barnes had killed the Whitlocks. During her interview with Weaver and Stidman, Roberts provided details of the crime scene that the police had not made public, including the fact that one of the bodies had been covered with a blanket.
On the basis of this information, Arkansas State Police officers went to interview Barnes at the Brickey’s Unit of the Arkansas Department of Corrections, where he was serving time on an unrelated charge. Although Barnes denied any involvement in the killings, he admitted that he had been with his girlfriend, Roberts, on the day in question. He also said that it was possible he had been inside the Whitlocks’ trailer, but if he had been, he had to have been sleepwalking.
In addition to the above evidence, the State also introduced the testimony of Charles Dunn, a fellow inmate at the Brickey’s Unit. Dunn testified that Barnes told him that he and a girl named Melanie got away with the murders of two elderly ladies. Dunn stated, “He was telling me how they went in and chopped them up with an axe, and that the most money that he got from them was like $43 and [a] five gallon bucket of sterling silver. ... I believe he said one of them was like 96 years old and the other one was like 76 or something like that, they were either mother and sister or mother and daughter.” Dunn’s testimony was corroborated by evidence found at the crime scene: both women’s purses had been emptied, and rooms, closets, and jewelry boxes had been ransacked.
Barnes contends only that his conviction was unsupported by substantial evidence because it was based solely on the statement of an accomplice, Melanie Roberts, and his own inculpatory statements. He also argues that, under Ark. Code Ann. § 16-89-111(e)(1) (Repl. 1997), a “conviction cannot be had . . . upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense.”
Clearly, when considered in light of the corpus delicti rule, this argument is without merit. In a case with similar facts, Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995), the appellant Mills argued that, other than his uncorroborated confessions to two fellow inmates, there was no proof that he fired the fatal shots. This court rejected his argument, holding that under the corpus delicti rule, the State needed only to have proved that Mills confessed and the victim died as a result of a homicide. In the instant case, we have Barnes’s confession to Dunn, Melanie Roberts’s confession and implication of Barnes, and the medical examiner’s testimony that the victims died as a result of homicide. The evidence was clearly sufficient to sustain the guilty verdicts.
For his second point on appeal, Barnes argues that the trial court erred in refusing to grant a mistrial when, during opening statements, the State made a reference to a statement Barnes gave to police in which he made the curious remark that he had a “vision” about “the bloody murder of two older ladies near Ash Flat.” Barnes’s counsel objected to the prosecutor’s comment during opening statements, noting that he had a pending motion to suppress and that the court had not yet held a Denno hearing on that motion. The court overruled the objection and told counsel that they would have the suppression hearing the following morning.
The judge held a Denno hearing during the next day of trial. Barnes contended that his “vision” statement was inadmissible because he was represented by counsel when he made the statement. The State responded that Barnes had initiated the contact with the officers, and as such, there was no need for counsel to have been involved. At that time, the judge ruled that the comment about the “vision” was inadmissible because it was “[his] understanding ... in Arkansas that if he’s got a lawyer, you got to notify the lawyer.” The judge made no inquiry as to whether Barnes had initiated contact with the officers before making the comment.
On appeal, Barnes argues that he was prejudiced by the fact that the jury heard the prosecutor’s statement about his “vision,” and even though the trial court later suppressed the statement, the damage had already been done. The State responds with the following three arguments: first, there was no prejudice because the statement actually was admissible; second, the trial court did not abuse its discretion in denying the motion for mistrial because the most to which Barnes would be entitled would be a remand for another Denno hearing; and third, any error which resulted from the prosecutor’s opening statement was harmless.
While the correctness of the trial court’s ruling on the statement’s admissibility is questionable, we decide the issue under the harmless-error rule. A similar situation presented itself in Landreth v. State, 331 Ark. 12, 960 S.W.2d 434 (1998). There, the defendant, Landreth, had confessed to three people the fact that he had murdered Daisy Galaher; the State also had physical evidence linking Landreth with the crime. On appeal, Landreth argued that the prosecutor, during closing arguments, improperly made reference to the fact that he had not testified in his own defense. Noting that the prosecutor’s comment was impermissible, this court nevertheless affirmed Landreth’s conviction, stating as follows:
In Chapman v. California, 386 U.S. 18 (1967), the Supreme Court declared that references to a defendant’s failure to testify violate the Fifth Amendment privilege against self-incrimination, but can be harmless error if it is shown beyond a reasonable doubt that the error did not influence the verdict. [Citation omitted.] Practical application of the Chapman test involves excising the improper remarks and examining the remaining evidence to determine if it can be shown beyond a reasonable doubt that the error did not influence the verdict. Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989).
Landreth, 331 Ark. at 18 (quoting Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995)). The harmless-error rule extends to other constitutional violations as well. See Riggs v. State, 339 Ark. 111, 3 S.W.3d 305 (1999) (harmless-error rule applied in the context of an involuntary confession); see also Arizona v. Fulminante, 499 U.S. 279 (1991).
As in Landreth, after we discard the tainted comment about Barnes’s “vision,” we conclude that there was overwhelming evidence of Barnes’s guilt, as discussed above. The State presented the confession Barnes made to Clifford Dunn, as well as Melanie Roberts’s confession encompassing her knowledge of undisclosed crime scene information and implicating Barnes in the murders. Again, Barnes admitted he was with Roberts on the day of the Whitlock murders. In addition, as will be discussed more fully below, Barnes himself made the incriminating statement that he could have been in the Whitlocks’ trailer, but if he was, he was sleepwalking. This evidence showed beyond a reasonable doubt that Barnes and Roberts were together on the day they murdered the two elderly women, and that they did so for money. We also note that the court instructed the jury that statements of counsel are not evidence. In Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993), this court held that a similar admonition to the jury cured any possible error. For these reasons, we hold that the prosecutor’s comment about Barnes’s statement did not constitute reversible error.
Barnes’s third point on appeal is that the trial court should have declared a mistrial or granted a continuance when the State failed to disclose an incriminating statement, made by Barnes in the form of a letter to Melanie Roberts, until the prosecutor was cross-examining Barnes during the defense’s case-in-chief. During cross-examination, the State questioned Barnes as to his communication with Roberts while he was in jail, asking particularly if he had written her a letter. Barnes replied that he did not send her a letter, but when the prosecutor asked again and showed Barnes a piece of paper, he said he “probably did.” At that point, the prosecutor said that he would like to read the letter ,in court. Defense counsel immediately objected, and the judge held a hearing outside the jury’s presence. During that hearing, the prosecutor said he had received the letter the weekend before trial. Nevertheless, defense counsel moved for a mistrial on the grounds that withholding the letter was a discovery violation. The court denied the motion for mistrial, but gave counsel a ten minute break to discuss the letter with Barnes. After that brief recess, the court ruled that the letter was admissible, and Barnes subsequently conceded that he had written it.
Barnes argues that the trial court should have excluded the letter and prevented the prosecutor from mentioning it. However, he does not contend how he was prejudiced by the letter’s introduction. We have held that when the State fails to provide information during discovery, the burden is on the appellant to show that the omission was sufficient to undermine the confidence in the outcome of the trial. Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996). Prejudice, though, does not exist when the defendant already has access to the information that the State did not disclose. Id. Here, because Barnes wrote the letter, he knew of its existence, and cannot claim to have been prejudiced by the State’s late disclosure of it.
In addition, this court will not presume prejudice where the appellant offers no proof of it. See, e.g., Tucker v. State, 336 Ark. 244, 983 S.W.2d 956 (1999). On this point, we note that Barnes failed to abstract the letter in question, and in a case in which neither the death penalty nor a life sentence is involved, we would decline to address the issue; however, as Barnes was sentenced to death, we have looked to the record and read the letter to determine if he was prejudiced. See Watson v. State, 313 Ark. 304, 854 S.W.2d 332 (1993). In reading the letter, we are unable to conclude that Barnes was prejudiced by its introduction. Further, Barnes merely argued before the trial court that he was prejudiced because the State caught him in a fie about the letter. However, we are unwilling to hold that a defendant should be permitted to benefit from his own fabrication. Barnes shows no prejudice, and our review reveals none.
Finally, the trial court granted Barnes’s request for a continuance to discuss the letter with counsel. Under Ark. R. Crim. P. 19.7, if the court learns that a party has failed to comply with a discovery rule, the court may exercise any of several options, including granting a continuance. It is within the trial court’s discretion to decide which sanction to employ. Rychtarik v. State, 334 Ark. 492, 976 S.W.2d 374 (1998); Reed v. State, 312 Ark. 82, 847 S.W.2d 34 (1993). Here, because Barnes obtained a continuance, which was one of the forms of relief he requested, he cannot be said to have suffered prejudice.
Barnes next argues that the trial court erred in denying his motion for mistrial during the State’s closing arguments. During its argument, the State made the following comments:
Can you imagine the horror of going to bed, did you notice the video, did you hear the background of the crickets chirping? Did anyone notice that? Crickets were chirping in the background, the methodical sound. What a peaceful sound. But can you imaging that sound and then somebody bursting in your window, literally almost having to come over the bed, swinging a hatchet.
Barnes immediately objected on the basis of the “golden rule,” and the trial court sustained the objection, but denied the motion for mistrial.
Barnes now contends that the denial of the mistrial motion was error, contending that the prosecutor “repeatedly attempted to persuade the jurors to place themselves in the position of the victims.” This court has pointed out that the “golden rule” argument is inadmissible because it tends to subvert the objectivity of the jury. King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994). “It is seen as an attempt to dissuade the jurors from their duty to weigh the evidence and instead to view the case from the standpoint of a litigant or party.” Id. (citing Metropolitan Life Ins. Co. v. Moss, 109 S.W.2d 1035 (Tex. 1937)).
However, a mistrial is a drastic remedy that should be ordered only when the fundamental fairness of the trial itself has been manifestly affected. King, 317 Ark. at 297. An admonition to the jury usually cures a prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing the trial. Id. However, among the factors we consider on appeal is whether the defendant requested a cautionary instruction or admonition to the jury, and the failure of the defense to request an admonition may negate the mistrial motion. Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997) (citing Boyd v. State, 318 Ark. 799, 889 S.W.2d 20 (1994)). It is also true that the failure to give an admonition or cautionary instruction is not error where none is requested. Id. Here, although Barnes requested a mistrial, he did not request an admonition to the jury. Having failed to so, he cannot now assert prejudice on this point.
For his fifth point, Barnes argues that a number of gruesome photographs were erroneously admitted into evidence. At trial, he had asked the court to keep many of the photographs out, contending that they were inflammatory, repetitive, and did not accurately portray the victims. The court conducted a photo-by-photo review of the allegedly offensive pictures, and did indeed rule that many of them were inadmissible.
The admission of photographs is a matter left to the sound discretion of the trial court. Riggs v. State, 339 Ark. 111, 3 S.W.3d 305 (1999). When photographs are helpful to explain testimony, they are ordinarily admissible. Id. (citing Williams v. State, 322 Ark. 38, 907 S.W.2d 120 (1995)). Further, the mere fact that a photograph is inflammatory or is cumulative is not, standing alone, sufficient reason to exclude it. Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994). Even the most gruesome photographs may be admissible if they assist the trier of fact in any of the following ways: by shedding light on some issue, by proving a necessary element of the case, by enabling a witness to testify more effectively, by corroborating testimony, or by enabling jurors to better understand the testimony. Id. Other acceptable purposes are to show the condition of the victims’ bodies, the probable type or location of the injuries, and the position in which the bodies were discovered. Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000). Absent an abuse of discretion, this court will not reverse a trial court for admitting photographs into evidence. Id.
Here, admittedly revolting photographs were used by the medical examiner, Dr. Frank Peretti, in his discussion of the injuries suffered by the Whitlocks and how they died; however, because the photos were used to illustrate and explain his testimony, and to show the nature and extent of the women’s wounds, the court did not abuse its discretion by admitting them into evidence. In addition, the crime scene photographs depicted both the location in which the bodies had been found, as well as the fact that the house had been ransacked. As such, they were relevant not only for the purposes listed above, but also to prove both the felony burglary element and the element of the capital murder charge requiring that the killing be done under circumstances manifesting extreme indifference to human life. Thus, we conclude that the trial court did not err with respect to the admission of the photographs.
Next, Barnes asserts that the trial court erred in denying his motion to suppress the statement he gave to police officers after those officers conducted a polygraph examination on him. At the conclusion of the polygraph exam, conducted on May 19, 1999, Barnes stated that there “was a possibility that he was inside the [Whitlocks’] trailer; however, if he was, he had to have been sleepwalking.” The trial court held a Denno hearing in February of 2000, and later ruled that the State could introduce Barnes’s statement.
On appeal, Barnes challenges this ruling on two fronts. First, he urges that the State did not turn over discovery materials concerning the polygraph examination, which deprived him of the opportunity to effectively cross-examine the officer who elicited the statement from him. Citing Clark v. State, 26 Ark. App. 268, 764 S.W.2d 458 (1989), he contends that discover materials requested by the defense must be furnished in sufficient time to permit beneficial use of them, and he claims that, because the State did not give him the polygraph examiner’s report until the day of the hearing, he did not have time to analyze the reports so he could conduct an effective cross-examination.
This court has held that it is reversible error when a prosecutor fails to comply with a defendant’s timely request for disclosure of information, when that failure results in prejudice to that defendant. Lee v. State, 340 Ark. 504, 11 S.W.3d 553 (2000). When the prosecutor fails to provide information, the burden is on the defendant/appellant to show that the omission was sufficient to undermine confidence in the outcome of the trial. Id. Barnes fails to make this showing. In his brief, he merely alleges that prejudice occurred, but he makes no definite statement as to how he was prejudiced. In addition, Barnes thoroughly cross-examined Ron Stayton, the officer who administered the polygraph exam, during the Denno hearing about the administration of the polygraph exam, whether anyone had informed Barnes of his rights prior to the exam, and whether the information had been provided to the prosecutor.
Further, this point does not warrant reversal because the trial court did not err in denying the motion to suppress. When we review a trial court’s ruling on a motion to suppress, we review the evidence in the light most favorable to the State and make an independent determination based upon the totality of the circumstances. Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000) (citing Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999); Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998)). Further, this court will only reverse a trial court’s ruling on a motion to suppress if the ruling was clearly erroneous. Id. In determining voluntariness, this court looks to whether the statement and waiver were the result of free and deliberate choice rather than coercion, intimidation, and deception. Riggs v. State, 339 Ark. Ill, 3 S.W.3d 305 (1999).
Here, Investigator Dale Weaver testified at the Denno hearing that he read Barnes his Miranda rights, and that Barnes waived his rights and asserted his willingness to talk to the police. Weaver said that he did not make any threats, promises, or coerce Barnes in any manner, and Barnes did not appear to be intoxicated and seemed capable of understanding his rights. Investigator Stan Witt also testified that he was present during the second of the two interviews with Barnes, and that Weaver informed him that he had read Barnes his Miranda rights. Finally, Ron Stayton testified that he administered the polygraph exam, as well as a pretest interview; he also noted that Barnes informed him that he (Barnes) had already been read his rights.
Barnes offered no testimony or other evidence to refute that presented by the State, see Friend v. State, 315 Ark. 143, 865 S.W.2d 275 (1993), and as such, the trial court’s decision not to suppress the statement was not clearly erroneous.
For his seventh point on appeal, Barnes argues that the court erred in overruling his objection to the prosecutor’s cross-examination, during which he brought up Barnes’s prior convictions for residential burglary and theft of property. When Barnes acknowledged having pled guilty to these earlier crimes, the prosecutor asked, “And do you want to tell the ladies and gentlemen of the jury the age of the ladies whose home you burglarized?” Defense counsel objected immediately, saying to the court, “That’s improper,” and the court stated simply, “Overruled. 404(b).” The prosecutor then had Barnes go into some detail about the earlier crime, in which he burglarized the home of an elderly lady.
On appeal, Barnes contends that this evidence was not admissible under Ark. R. Evid. 404(b), arguing that the mere fact that he pled guilty to an earlier burglary was irrelevant, because the two crimes were not similar. In matters relating to the admission of evidence under Arkansas Rules of Evidence 404(b), a trial court’s ruling is entitled to great weight and will not be reversed absent an abuse of discretion. Cook v. State, 345 Ark. 264, 45 S.W.3d 820 (2001). Rule 404(b), of course, provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
Evidence offered under Rule 404(b) must be independently relevant, thus having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Cook, 345 Ark. at 270 (citing McGehee v. State, 338, Ark. 152, 952 S.W.2d 110 (1999)). The list of exceptions to inadmissibility in Rule 404(b) is not an exclusive list, but instead, it is representative of the types of circumstances under which evidence of other crimes or wrongs or acts would be relevant and admissible. Id. (citing Williams v. State, 343 Ark. 591, 602, 36 S.W.3d 324, 331 (2001)).
Although Barnes argues that the State introduced this evidence to prove his modus operandi, we conclude instead that the State was asking about Barnes’s prior burglaries as proof of his motive, preparation, and plan in the present case, as the Whitlocks’ home had also been ransacked and burglarized. In Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995), this court stated as follows:
The degree of similarity between the circumstances of prior crimes and the present crime required for admission of evidence under Rule 404(b) is a determination that affords considerable leeway to the trial judge, and may vary with the purpose for which the evidence is admitted. See 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 112, n. 4 and accompanying text (2d ed. 1994) (“To be probative, prior criminal acts must require an intent similar to that required by the charged crime, although it is usually said that the prior crime need not closely resemble the charged crime.”); 1 John W Strong, McCormick on Evidence § 190, n. 31 and accompanying text (4th ed. 1992) (“The similarities between the act charged and the extrinsic acts [admitted to show the act charged was not performed inadvertendy, accidentally, involuntarily, or without guilty knowledge] need not be as extensive and striking as is required ... [to show modus operandi]”).
Sasser, 321 Ark. at 447. Thus, although the degree of similarity between the earlier crime and the present one was not striking, nevertheless, in both instances, Barnes broke into the homes of elderly women in order to rob them. Thus, the evidence of his prior conviction was relevant to show that he possessed the same intent, motive, and plan — that is, to rob — as he did in the earlier case, and the trial court did not abuse its discretion in permitting the prosecutor to delve into this line of questioning.
Barnes’s eighth point on appeal is that the trial court erred in refusing to grant him a continuance with respect to the testimony of Clifford Dunn. Barnes orally moved for a continuance on February 14, 2000, alleging that the State had not notified him until February 7 that it would be calling Clifford Dunn to testify about Barnes’s confession. The defense had also filed a motion for discovery sanctions with respect to the State’s withholding of that information; in that motion, Barnes asserted that the State did not provide him with a transcript of Dunn’s statement until February 8. At the hearing on the motion, the State replied that Dunn’s statement was specifically set out in the affidavit of probable cause filed along with the felony information charging Barnes with capital murder. The State also noted that, months before the motion was filed, there had been a report, specifically listed in discovery, indicating Dunn would be a witness. Further, the prosecutor pointed out that his office maintained an open-file policy, and that Barnes’s attorneys had been welcome to come copy anything they needed at any time. The court denied the motion for continuance.
A trial court’s decision to grant or deny a continuance is within its sound discretion, and that decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Dirickson v. State, 329 Ark. 572, 953 S.W.2d 55 (1997). Further, it is the appellant’s burden to demonstrate how he was prejudiced by the denial of the continuance. Davis v. State, 318 Ark. 212, 885 S.W.2d 292 (1994). When a motion for continuance is based on a lack of time to prepare, we will consider the totality of the circumstances. Id.
Flere, defense counsel admitted that he had been aware of Dunn’s existence from the very beginning, and stated that he had made a “tactical decision” as to how to proceed with the case “knowing [the State] had not listed Mr. Dunn.” Barnes knew about the possibility that Dunn might be called, and thus he cannot now be heard to complain that the situation did not play out the way he hoped. See Stephens v. State, 342 Ark. 151, 28 S.W.3d 260 (2000) (a defendant is not entitled to rely on discovery alone as a substitute for thorough investigation). Because Barnes has not demonstrated how he was prejudiced, this court cannot conclude that the trial court’s denial of the continuance was in error.
Finally, Barnes argues that the trial court should have granted him a continuance in order to obtain an additional mental evaluation after Melanie Roberts testified that Barnes had a “split personality.” Roberts, who had previously pled guilty to the murders, recanted her confession on the stand and claimed that she and Barnes did not kill the Whitlocks. The prosecutor, however, impeached her with her prior statement in which she confessed to the police; in that statement, she recounted how Barnes occasionally called himself “Chaz” and physically threatened and abused her. During her testimony, Barnes asked for another mental evaluation and a continuance “until that issue can be addressed by a psychiatrist to see if we have a mental disease or defect defense based upon split personality which was not covered in the first examination.”
By the time of trial, Barnes had already undergone two other mental evaluations, both of which' diagnosed him as sociopathic, but otherwise capable of standing trial. In addition, he had also filed a “Motion to Withdraw Notice of Mental Disease of Defect,” in which he stated that he did not dispute the mental fitness determination and sought to withdraw the previously filed notice that his mental condition would be an issue in the trial. Further, Roberts’s statement, in which she alluded to Barnes’s “split personality,” had been available to defense counsel early on, thus giving Barnes ample time to investigate this facet of the case.
Again, we review the trial court’s denial of a continuance to determine if there was an abuse of discretion. Given the circumstances described above, and also given the fact that any further mental evaluations after the first one required under Ark. Code Ann. § 5-2-305 (Repl. 1997) are “discretionary with the trial court,” see Dyer v. State, 343 Ark. 422, 36 S.W.3d 724 (2001), we cannot say that the trial court abused its discretion in denying Barnes’s last-minute motion for a continuance to seek yet another mental evaluation.
In accordance with Rule 4-3 (h) of the Arkansas Supreme Court Rules, the transcript of the record before us has been reviewed for adverse rulings objected to by appellant but not argued on appeal, and no reversible errors were found.
For the foregoing reasons, Barnes’s conviction and sentence are hereby affirmed.
Corbin, Thornton, and Hannah, JJ., dissent.
While the dissent contends that the prosecutor made his reference to Barnes’s “vision” statement at a time when he knew that a Denno hearing had yet to be held on the admissibility of that statement, it was the defendant’s burden to obtain the hearing he requested. Barnes filed more than thirty pretrial motions, including the two motions to suppress his statement that were filed on February 8, 2000. The trial did not begin until February 23, 2000, thus giving him over two weeks to get a hearing scheduled. Further, although the dissent suggests that there was bad faith on the part of the prosecutor, the trial court made no such finding. Moreover, while Barnes’s counsel had filed a large number of motions, it is not apparent from the abstract or the record that Barnes reminded the trial court on the day of trial that the Denno hearing was yet pending; indeed, Barnes did not make a comment to this effect until after the prosecutor’s reference to the “vision” statement in opening arguments.
During his testimony, Barnes refuted the officers’ version of his sleepwalking statement, asserting that what he had actually said was that “the only way [he] could have been there was if [he] was sleepwalking, and [he didn’t] sleepwalk.” The resolution of these conflicting versions of events, however, was a question for the jury to decide. See, e.g. Solomon v. State, 323 Ark. 178, 913 S.W.2d 288 (1996).
Barnes was charged under Ark. Code Ann. § 5-10-101(a)(1) (Repl. 1997), which states, in relevant parts that a person commits capital murder if he “commits . . . burglary . . . and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life.”
Barnes gave the statement at issue here after the conclusion of the polygraph examination. The argument on appeal does not raise, and we do not address, any question regarding the introduction of the results of the polygraph exam, which of course are inadmissible. See Ark. Code Ann. § 12-12-704 (Repl. 1999); Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001).
To offer 404(b) evidence to prove modus operandi, two requirements must be met: 1) both acts must be committed with the same or strikingly similar methodology; and 2) the methodology must be so unique that both acts can be attributed to one individual. Diffee v. State, 319 Ark. 669, 894 S.W.2d 564 (1995).
“Chaz” was the name by which Roberts referred to Barnes’s “other” personality. | [
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Per Curiam.
Appellant Angel Chevez Flores, by and through his attorney, has filed a motion for rule on clerk. His attorney, W Gary Kennan, states in the motion that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Tom Glaze, Justice,
dissenting. On July 25, 2001, our court issued its mandate granting expedited consideration for Edmundo Rogers’s motion to stay “conditioned upon continued payment of child support and the $30,000 supersedeas bond remaining in effect.” On July 27, 2001, we then granted Rogers’s habeas corpus petition to release him from the Benton County Jail. Instead of complying with the supreme court’s mandate, the trial court found that, because Rogers was in contempt for failing to pay alimony to his wife, the trial court incarcerated Rogers for contempt for willful nonpayment of alimony, and concluded the supreme court’s earlier mandate regarding child support did not pertain.
Clearly, the record shows Rogers has complied with the supreme court’s mandate concerning the payment of child support. Rogers’s challenge to the alimony award is on appeal and our court should unquestionably stay enforcement of the trial court’s alimony award and finding of contempt. This court’s failure to stay the proceeding below leaves Rogers no remedy to challenge his jail sentence until after he has fully served it. Fundamental due process is wholly ignored by this court’s refusal to grant a stay and, at least, Rogers’s temporary release from jail.
I would grant Rogers’s petition and stay until his case can be heard on the merits. | [
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Per Curiam.
Appellant, Randy Ladon Anderson, was convicted of capital murder in Chicot County Circuit Court on February 16, 2001. Appellant was sentenced to execution. Appellant was represented by John F. Gibson at trial.
On July 11, 2001, a Motion to be Relieved of Counsel was filed by John F. Gibson, attorney for the Appellant Randy Ladon Anderson. That on or about June 14, 2001, counsel for the Appellant received a letter from the appellant informing him that he decided to hire Mr. Samuel Perroni to handle his appeal.
On July 2, 2001, a Motion for Substitution of Appellate Counsel was filed on behalf of Appellant Randy Ladon Anderson by Attorney Samuel Perroni. In his motion, counsel states that Appellant consulted and retained the attorneys of Perroni & James to assist him in his appellate efforts or post-conviction relief.
We grant John F. Gibson’s motion to be relieved of counsel and grant Samuel Perroni’s motion to be substituted as Appellant’s attorney in this matter. | [
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Per Curiam.
Cymber L. Tadlock, as a state-salaried, full-time public defender, was appointed by the trial court to represent appellant Robert Lee Fairchild, an indigent defendant, in this criminal case. Fairchild was convicted and sentenced to life imprisonment in the Arkansas Department of Correction. Ms. Tad-lock timely filed a notice of appeal from the judgment of conviction and lodged the appellate record with the Supreme Court Clerk.
Ms. Tadlock now asks this court to relieve her as appellant’s counsel and to appoint new counsel. Ms. Tadlock cites Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000), that public defenders cannot be paid separately to file appeals. Accordingly, we grant Ms. Tadlock’s motion to be relieved for good cause shown. Mr. John W. Cone will be substituted as appellant’s attorney in this matter.
Act 1370 of 2001 provides that part-time public defenders may receive compensation from appellate courts. | [
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Per Curiam.
Gregory Davidson was convicted of first-degree murder on April 18, 2001. His counsel filed a notice of appeal that same day, although the judgment and commitment order was not filed until April 25, 2001. Counsel also filed a second notice of appeal on April 27, 2001; however, under Ark. R. App. P. — Crim. 2(b)(1), the first notice of appeal, filed April 18, 2001, is treated as having been filed on the day after the judgment was entered, or on April 26. The record was thus due to be lodged with the clerk’s office by July 25, ninety days after the filing of the notice of appeal. See Ark. R. App. P. — Civ. 5(a).
At the time of his sentencing, Mr. Davidson’s attorney had provided him with an affidavit of indigency to fill out, but Mr. Davidson did not return that affidavit to his attorney until the last of June. Mr. Davidson eventually filed his motion to be declared indigent, accompanied by the affidavit, in circuit court on June 20, 2001. On July 5, 2001, Mr. Davidson also filed a motion in the circuit court to extend the time in which to lodge his record with this court. On July 9, 2001, the circuit court entered an order declaring Mr. Davidson to be indigent. However, on that same day, the court also entered an order denying the motion for extension of time to file the record, finding that the requirements of Ark. R. App. P. — Civ. 5(b) had not been met.
Mr. Davidson filed a partial transcript with this court on July 13, 2001, the same day he filed the present motion for emergency relief. In that motion, he asks us to direct the trial court to grant an extension of time to lodge the record, or, in the alternative, for this court to extend the time for the filing of his record; the motion also seeks additional time to request from this court a declaration of indigency.
As the trial court entered its order declaring Mr. Davidson indigent before the partial record was lodged with our clerk’s office, it is not necessary for us to rule on that part of his motion. However, because Mr. Davidson filed his motion for relief with this court within ninety days from the filing of his notice of appeal, we consider the motion timely, see Ark. R. App. P.-~Crim. 4(c) and Ark. R. App. P. — Civ. 5(c), and we hereby grant him an extension of 45 days from the date of this per curiam in which to lodge his record with the clerk’s office.
On July 24, 2001, the trial court entered an order on the court reporter’s motion, granting a ninety-day extension of time in which to prepare the appeal transcript. However, as Mr. Davidson had already filed his partial transcript with this court, the trial court lost jurisdiction to enter further orders in the case. See, c.g., Forrest City Machine Works v. Mosbacher, 312 Ark. 578, 851 S.W.2d 443 (1993). In response to that order, on August 14, 2001, Mr. Davidson filed with this court a motion for clarification, which we also consider here. | [
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Tom Glaze, Justice.
Michael Hatfield challenges his convictions for rape and kidnapping, for which he was sentenced to life in prison. On appeal, he does not challenge the sufficiency of the evidence. The point he argues is that the trial court erred in failing to obtain his knowing and intelligent waiver of his right to counsel and in permitting him to proceed pro se at trial. This appeal requires us to determine two issues: first, whether or not Hatfield waived his right to counsel; and second, whether he subsequently relinquished his right to self-representation by permitting his attorney to conduct portions of the trial.
Hatfield was charged by information with one count each of kidnapping and rape. The charges stemmed from the abduction of a twelve-year-old girl on September 3, 1999. The information was filed on September 10, 1999, and on September 14, 1999, the trial court appointed public defender Dave Harrod to represent Hatfield. At that time, Hatfield entered a plea of not guilty by reason of mental disease or defect and requested a mental evaluation. Harrod continued to represent Hatfield throughout a number of pretrial hearings, and at a hearing on August 1, 2000, Harrod again announced that they were ready for trial, which was scheduled for August 7, 2000. On August 4, 2000, however, Hatfield filed a letter with the circuit court in which he declared that he had “fired Dave Winslow Harrod as my public defender for conflict of interest and disagreement over trial and case management,” and requested that the court appoint him a different public defender.
Hatfield’s jury trial began on August 7, 2000. That morning, Harrod mentioned Hatfield’s motion, and noted that the court had “indicated by order back to Mr. Hatfield that he either had to use the public defender he was assigned or represent himself.” Harrod also said that Hatfield had “indicated . . . that what he’d like to do if at all possible . . . since he’s unfamiliar with voir dire is for me to sit in and assist in the jury selection and then he would like to represent himself in open court with the jury.” Hatfield agreed with this assessment of the situation, and after addressing several other motions, the court and counsel had the following exchange:
The COURT: Well, you know even if we follow this procedure with you picking the jury then Mr. Hatfield proceeding with the trial. Then you’ll be present during the entire trial and available so he can consult you as necessary. And also, you know, if he wants you to question any witnesses or do anything on his behalf. You’re available to do that; you’re going to be available stand-by.
Mr. Harrod: Well, I didn’t believe that I was going to be able to go fishing, Judge. My assumption was that if he’s going to go ahead and do the trial himself so as not confuse him I can sit aside and if he needs to consult then he can ask the court for a moment and we can confer, and, and — and it should be an orderly process.
The COURT: As long as you’re available.
Mr. Harrod: Yes, sir.
H: H* H* ‡
Mr. HARROD: Judge, I don’t believe there’s anything else that needs to be taken up with regard to the defense. And the defense would be prepared to go forward.
The COURT: Anything else by the State?
PROSECUTOR: We’d ask for just a few minutes to find some cases on . . . the court relieving Mr. Harrod. Because there are some questions and some steps that the supreme court has said that the court has to go through.
THE COURT: Well, he hasn’t been relieved. It’s just that . . .
Prosecutor: He just wants to try his own case.
The Court: Right.
PROSECUTOR: And Mr. Harrod will be here to make objections and . .
Mr. HARROD: Well, not exactly. I’ll be here . . .
The Court: Right, and to consult with.
Mr. HARROD: I’ll — I’ll be available if he’s got a question and or if, you now, if there’s some critical advice he needs, but I’m not going to interfere with his trying the case.
The COURT: Or to proceed with the case if he so elects to allow you to do that.
Mr. Harrod: Whatever, Judge. Yes, sir.
The COURT: So you’re still counsel on the case.
Mr. HARROD: Yes, sir. I just — I just want [it] clear, Judge, that Mr. Hatfield’s desire is to proceed with the case in his own fashion. And his method does not match the defense method, and rather than appear at loggerheads I think his decision to go forward is — is reasonable. And I — I think that sitting in a position where I can, you know, if he calls I can be of assistance. I don’t mind doing that a bit. If there’s any question that comes up on his part I don’t mind answering that at all. This is not personal, it’s just — just a —
The Court: Trial strategy.
Mr. Harrod: Trial strategy and case methodology management dis — disagreement.
The COURT: Anything further for the State?
PROSECUTOR: Your honor, there’s not anything further as far as on the motions.
(Emphasis added.) After this exchange, attorney Harrod proceeded to conduct voir dire, which occupied the first day of trial. On the second day, Hatfield gave his own opening statement, and conducted cross-examination of six of the State’s eleven witnesses who testified that day.
On appeal, Hatfield argues that he was not given the opportunity to knowingly and intelligently waive his right to counsel. The right of a criminal defendant to proceed pro se was delineated in Faretta v. California, 422 U.S. 806 (1975), where the Supreme Court held that “in order to represent himself, the accused must knowingly and intelligently forgo those relinquished benefits [traditionally associated with the right to counsel].” Faretta, 422 U.S. at 835. The Court further stated that, although a defendant need not have the skill and experience of a lawyer in order to competently and intelligently choose self-representation, he “should be made aware of the dangers and disadvantages of self-representation so that the record will establish that he knows what he is doing and his choice is made with eyes open.” Id. (citing Adams v. United States ex ret. McCann, 317 U.S. 269 (1942)). In Faretta, the Court also concluded that a defendant’s technical legal knowledge, as such, is not relevant to an assessment of his knowing exercise of the right to defend himself.
Likewise, this court has long recognized the crucial aspect of informing an accused of his right to represent himself, along with the attendant risks. See, e.g., Williams v. State, 153 Ark. 289, 239 S.W. 1065 (1922); Slaughter v. State, 240 Ark. 471, 400 S.W.2d 267 (1966); Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975). Furthermore, our court has held that the trial court maintains a weighty responsibility in determining whether an accused has knowingly and intelligently waived his right to counsel. Gibson v. State, 298 Ark. 43, 764 S.W.2d 617 (1989) (citing Johnson v. Zerbst, 304 U.S. 458 (1938)); Murdock v. State, 291 Ark. 8, 722 S.W.2d 268 (1987). Every reasonable presumption must be indulged against the waiver of fundamental constitutional rights, Daniels v. State, 322 Ark. 367, 908 S.W.2d 638 (1995), and the burden is upon the State to show that an accused voluntarily and intelligently waived his fundamental right to the assistance of counsel. Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996). Determining whether an intelligent waiver of the right to counsel has been made depends in each case on the particular facts and circumstances, including the background, the experience, and the conduct of the accused. Oliver, 323 Ark. at 749; Beyer v. State, 331 Ark. 197, 962 S.W.2d 751 (1998).
A criminal defendant may invoke his right to defend himself pro se provided that (1) the request to waive the right to counsel is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct that would prevent the fair and orderly exposition of the issues. Collin's v. State, 338 Ark 1, 991 S.W.2d 541 (1999); Mayo v. State, 336 Ark. 275, 984 S.W.2d 801 (1999) . A specific warning of the dangers and disadvantages of self-representation, or a record showing that the defendant possessed such required knowledge from other sources, is required to establish the validity of a waiver. Bledsoe v. State, 337 Ark. 403, 989 S.W.2d 510 (1999) (citing Scott, infra). The “constitutional minimum” for determining whether a waiver was knowing and intelligent is that the accused be made sufficiently aware of his right to have counsel present and of the possible consequences of a decision to forego the aid of counsel. Scott v. State, 298 Ark. 214, 766 S.W.2d 428 (1980) (quoting Patterson v. Illinois, 487 U.S. 285 (1988)).
Hatfield’s argument in the instant appeal is that the trial court did not sufficiently advise him of the possible consequences of proceeding pro se. Indeed, it is apparent from the record that the trial court made no inquiry into Hatfield’s understanding of the risks and dangers of representing himself, even though attorney Harrod volunteered to the court that Hatfield’s “case methodology” did not match the “defense method.” While an assessment of how well or poorly Hatfield mastered the intricacies of the law is not relevant to an assessment of his knowing exercise of the right to defend himself, see Faretta, supra, it is evident from the record that, from his conduct before and during trial, he could not have understood the disadvantages or risks he was about to undertake when assuming control of his own defense. Indeed, Hatfield’s cross-examination of several of the witnesses reveals his lack of comprehension of the fundamentals of trial procedure. For example, his examination of the victim’s mother was rambling, and much of it was irrelevant. The prosecutor objected repeatedly to his questioning, and Hatfield became increasingly flustered, at one point asking the court, in reference to the State’s objections, “Is this going to be the entire trial? Object. Object. Object.” Later in the day, as deputy sheriff Richard Houchin testified about photographs of footprints taken at the crime scene, Hatfield essentially incriminated himself during the following exchange:
Hatfield: Okay. And, ah, what about the tracks?
HOUCHIN: I made no reference to whose footprints they were. That’s a true statement.
Hatfield: Sure you did. Sure you did. I’ve got a ■— I’ve got lab number . . . 9912060391K87. What that is — is a copy of my left and right shoe print.
Clearly, Hatfield was unaware of the fundamentals of trial strategy, nor was he aware as to how to conduct cross-examination of the witnesses. Since Hatfield never intended to offer witnesses in his own defense, and his entire case was dependent upon the cross-examination of the State’s witnesses, the trial court should have made Hatfield aware of the dangers and disadvantages in representing himself, as required by Faretta. In prior cases, this court has held that the trial court’s failure to make such an inquiry constituted reversible error. See, e.g., Daniels v. State, 322 Ark. 367, 908 S.W.2d 638 (1995); Scott v. State, 298 Ark. 214, 766 S.W.2d 428 (1989); Gibson v. State, 298 Ark. 43, 764 S.W.2d 617 (1989). Here, because the trial court allowed stand-by counsel to remain in the case, it did not make even a limited inquiry into the defendant’s understanding of the legal process before permitting Hatfield to represent himself. This was clearly error on the trial court’s part.
The State, however, urges this court to conclude that, even if the trial court failed to conduct the relevant inquiry, there was still no reversible error because Hatfield effectively relinquished representation to his standby counsel. In other words, the State contends that any deficiencies in the trial court’s Faretta inquiry were rendered moot by attorney Harrod’s active participation throughout the trial, and Hatfield thereby waived his right to proceed pro se. The State points out that Harrod conducted each of the thirteen pretrial hearings in this case. At most of these hearings, Harrod requested continuances, and on March 14, 2000, Harrod announced that he was ready for trial as soon as the State finished producing evidence. At the May 9, 2000, pretrial hearing, Harrod took up a number of motions for Hatfield, including a request that he not be made to go to trial in prison clothing and a motion requesting individual voir dire. Harrod also spent a good deal of time at the May 9 hearing discussing the State’s DNA evidence and the fact that the FBI had not been forthcoming in their test results, and, on the first day of trial, Harrod engaged in voir dire on Hatfield’s behalf. While Hatfield conducted the second day of trial, cross-examining a number of the State’s witnesses that day, on the third day, however, Hatfield became ill and asked the court if Harrod could continue the trial for him, as follows:
Mr. Hatfield: Your Honor, I’ve . . . come down sick. . . . [I]nstead of postponing the trial and going to the doctor I can . . . get a trash can over here in case I have to throw up and I’m requesting that Dave [Harrod] continue the rest of the trial. Ah, we have no — we had no disagreement as far as legal procedures from this point on. It’s just the DNA and the hair samples and maybe a few other witnesses. No problem there. And we just go ahead and resolve this today or tomorrow whenever it’s going to be over.
The COURT: Okay. The court will allow Mr. Harrod to proceed then since you all are acting as co-counsel together.
Mr. Hatfield: Okay. Is that okay with you?
Mr. Harrod: Your Honor, if. . .
PROSECUTOR: Do what the judge tells you.
Mr. Hatfield: Okay.
Mr. Harrod: ... if that’s going to be the case, . . . counsel was informed of this about four minutes before trial started. Ah, the records that I have are not laid out or set up, ah, for the witnesses coming in. I’d ask for a twenty minute recess to get set up.
The COURT: Yes, the court will permit you to get your stuff set up then.
Harrod finished the rest of the trial, cross-examining four of the nine witnesses called by the State that day, including the DNA experts — who offered the most conclusive evidence regarding Hatfield’s guilt — and moving for a directed verdict at the close of the State’s case. That motion was denied, and Harrod rested the defense’s case without calling any witnesses. He again moved for a directed verdict, and it was once more denied. Harrod also offered several proposed jury instructions to the court, and delivered the closing argument. Harrod asked to poll the jury when it returned with its verdict, raised objections to testimony offered by one of the State’s witnesses during the sentencing phase, informed the court that Hatfield would not call any sentencing witnesses, and offered a closing argument to the jury at the sentencing phase.
These circumstances bring us to the State’s counterargument: did Hatfield relinquish his representation to attorney Harrod? The State submits that once a defendant invokes his right to self-representation, he may subsequently waive that right when he “invites or agrees to any substantial participation by [stand-by] counsel.” See McKaskle v. Wiggins, 465 U.S. 168 (1984); see also United States v. Heine, 920 F.2d 552 (8th Cir. 1990). Also in support of this argument, the State cites Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996), and Calamese v. State, 276 Ark. 422, 635 S.W.2d 261 (1982). In Oliver, this court held that the trial court’s failure to inquire into Oliver’s financial ability to hire counsel was error, but still concluded that, because the stand-by counsel provided active representation of the defendant, it would be “hard put to hold that Oliver was denied his right to counsel.” Oliver, 323 Ark. at 751-52. Likewise, in Calamese, the defendant repeatedly asserted to the trial court that she wanted to proceed pro se, and the record was in fact silent as to whether or not the trial court inquired into attempted waiver of counsel. However, Calamese’s “stand-by” attorney immediately assumed an active role as her trial attorney, examining all of the witnesses, making objections to evidence, and presenting a lengthy defense. This court held that the trial court’s error in fading to conduct an inquiry was rendered moot by Calamese’s subsequent relinquishment of the trial to her attorney.
We agree with the State’s arguments. We note that in Bledsoe v. State, 337 Ark. 403, 989 S.W.2d 510 (1999), we held that the question of whether or not the assistance of stand-by counsel rises to a level where the defendant is deemed to have had counsel for his defense, thereby mooting any assertion of involuntary waiver, is a question that must be answered by looking at the totality of the circumstances. Bledsoe, 337 Ark. at 410 (citing Oliver, supra; Wicoff v. State, 321 Ark. 97, 900 S.W.2d 187 (1995)). Our cases on this issue demonstrate that the assistance must be substantial, such that counsel was effectively conducting a defense. Id. (citing Oliver, supra, and Calamese, supra).
In Bledsoe, this court first held that the trial court erred in failing to explicitly inform the defendant of his constitutional right to an attorney. However, the State in that case, as it does here, argued that, even if the trial court failed to inform the defendant of the risks of proceeding pro se, there was still no error because Bledsoe relinquished representation to his stand-by counsel. The Bledsoe court disagreed. There, counsel did not actively participate in the defense during most of the trial; Bledsoe, rather than his lawyer, cross-examined twenty-four of the State’s twenty-five witnesses, raised and argued the only substantive objections during the trial, and presented his own closing argument. While counsel conducted voir dire and gave the opening statement, this court held that the attorney “effectively relinquished” representation to Bledsoe once the State began to call witnesses. Further, although counsel’s participation increased at the end of Bledsoe’s trial, when he reviewed the jury instructions and handled the sentencing phase, this court maintained that Bledsoe was essentially left to represent himself during most of the proceedings.
Here, Hatfield’s trial performance only included opening statement and cross examination of six witnesses; however, every other stage of the defense was handled by counsel, Harrod. While the dissenting opinion goes to some length in assessing Hatfield’s deficiencies in presenting his defense, such deficiencies are not relevant to a Faretta inquiry, nor are they relevant when deciding whether he relinquished his representation to Harrod and whether Harrod’s representation or assistance was substantial. To summarize, Harrod handled all pretrial matters, including thirteen hearings, a full day of voir dire of the jury, the cross examination of four state witnesses (including the DNA experts), moving for directed verdict, making closing argument, offering proposed jury instructions, raising objections, and making closing argument at the sentencing stage of trial. Unquestionably, Harrod, at Hatfield’s request, provided Hatfield effective substantial legal assistance in conducting his defense. Certainly, Harrod could have been in a better position to present Hatfield’s defense if Hatfield had not chosen to make an attempt to proceed pro se; nonetheless, when it came to the actual presentation of his case, he relinquished full discretion to Harrod as to how to conduct significant trial procedures and responsibilities during two of the three days of trial.
The record in this case has been reviewed for other reversible error in accordance with Ark. Sup. Ct. R. 4-3 (h), and none has been found. For the aforementioned reasons, the judgment of conviction is affirmed.
BROWN, Imber, and Thornton, JJ., concur in part and dissent in part.
While the dissent makes reference to Hatfield’s “handling] solely” eleven witnesses, the record shows that he only cross-examined six of those witnesses, asking no questions of the other five.
Although the court warned Bledsoe that he would have to conform to the rules and procedures of the court, the court did not explain the consequences of failing to comply with those rules. Thus, this court concluded that Bledsoe did not knowingly and intelligently waive his right to counsel. | [
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Per Curiam.
The facts of this matter, which concern the failure of Madeline McClure, an official court reporter, to timely file seven different transcripts with this court’s clerk, are set out in our per curiam opinion issued on May 17, 2001. Ross v. State, 344 Ark. 623, 42 S.W.3d 483 (2001). We stated in that opinion that Ms. McClure had failed to comply with the writs of certiorari granted and issued in the above-referenced matters. We ordered Ms. McClure to appear before this court on May 24, 2001, to show cause why she should not be held in contempt of court for her failure to comply in a timely manner with the commands of the writs issued in the above-styled actions.
At her appearance before this court on May 24, 2001, Ms. McClure pled not guilty to contempt, and we appointed the Hon. John Lineberger as master to conduct the hearing, make findings of fact, and file them with the court. See Ross v. State, 345 Ark. 181, 44 S.W.3d 336 (2001) (per curiam). On August 13, 2001, the master filed his report and findings of fact with this court’s clerk. The report reflects that a hearing was conducted on July 12, 2001, at which Ms. McClure appeared pro se.
According to the master’s report, Ms. McClure began her career as a general freelance court reporter in 1983. Eventually, she served as a substitute court reporter for various circuit and chancery courts in Pulaski County. No complaints were filed against Ms. McClure in her capacity as a freelance or substitute reporter. In December 1999, she became employed as the official court reporter for the Fifth Division Circuit Court, Sixth Judicial District, working first forjudge Morris Thompson and, then, for his successor, Judge Leon Johnson. Judge Willard Proctor, who succeeded Judge Johnson on January 1, 2001, did not retain her. Ms. McClure has been unemployed since January 1, 2001.
The master made extensive findings of fact regarding Ms. McClure’s performance in connection with the timely preparation and filing of transcripts for appeal in the above-styled actions. A summary of those findings is set out below:
Ross v. State (CR 01-177): The transcript of a one-and-one-half hour non-jury trial was due to be filed with this court’s clerk on February 10, 2001 (after trial court extensions for the full seven months from entry of judgment). No part of the transcript was ready at that time. On February 27, 2001, we granted a writ of certiorari to complete the record, returnable on March 1, 2001, followed by a final extension deadline of April 1, 2001. Ms. McClure knew the importance of meeting the March 1 deadline but did not start preparing the transcript before March 1. She only had a few pages prepared by the April 1 final deadline.
Simpson v. State (CR 01-268): The transcript of a two-and-one-half day criminal jury trial was due to be filed with this court’s clerk on March 6, 2001 (after trial court extensions for the full seven months from entry of judgment). Ms. McClure had started typing the transcript but did not have anything in print. On March 22, 2001, we granted a final extension of time to return the writ until April 21, 2001. As of the final deadline, Ms. McClure did not have anything in print.
Gil Landers d/b/a Big Daddy Pawn Shop v. Ken Jameson (01-269): The transcript of a civil non-jury case was due to be filed with this court’s clerk on March 16, 2001 (after trial court extensions for the full seven months from entry of judgment). When the transcript was not ready by the March deadline, we granted a final extension of time to return the writ until April 28, 2001. Ms. McClure did not have the transcript prepared by that final deadline. The 60-page transcript was eventually filed by Ms. McClure on June 12, 2001.
Quinton Handy v. State (CR 00-1445): The transcript of a full-day criminal jury trial was due to be filed with this court’s clerk on December 18, 2000 (after trial court extensions for the full seven months from entry of judgment). Once again, no transcript was ready by the December deadline. On January 11, 2001, we granted a writ of certiorari, returnable on February 10, 2001, followed by an extension to March 10, 2001, and a final extension deadline of April 28, 2001. Ms. McClure never prepared the transcript.
Rouse v. State (CR 01-336): The transcript of a criminal non-jury case, in which hearings were held on two different days, was due to be filed with this court’s clerk on March 21, 2001 (after trial court extensions for the full seven months from entry of judgment). Because the transcript was not ready by March 21, we granted a writ of certiorari on April 5, 2001, and fixed a final return date of May 5, 2001. Ms. McClure failed to comply with our directive. The 173-page transcript was eventually filed by Ms. McClure on June 21, 2001.
Davison v. State (CR 01-342 and CR 01-348): The transcripts of these criminal cases were due to be filed with this court’s clerk on March 22, 2001 (after trial court extensions for the full seven months from entry of judgment). When the transcripts were not ready by that deadline, we granted a writ of certiorari on April 5, 2001, and fixed a final return date of May 5, 2001. Once again, Ms. McClure failed to comply with our directives. The transcripts (86 pages and 22 pages, respectively) were eventually filed by Ms. McClure on July 2, 2001.
At the hearing conducted by the master, Ms. McClure testified that her problem with preparing all of the transcripts was twofold: “. . . all my equipment went down and my personnel went to nothing.” Apparently, her word processor failed in late December 2000, and she purchased new equipment in mid-January 2001. However, Ms. McClure claimed she did not know how to operate the new equipment and could not find anyone to give her lessons. Judge Proctor allowed her to use the court’s transcriber until the end of March 2001, at which point she and her typist shared a rented transcriber until she purchased a new one in May or June 2001. Ms. McClure also testified that her typist would not type jury proceedings.
The master concluded his report with the following pertinent findings:
Time was available for Ms. McClure to timely prepare the transcripts in question. There were no other distractions in her life; her judges authorized her to stay (or go) home and work on transcripts when trials or hearings were not in progress and she had few other transcripts to prepare.
While computers can be complicated machines, Ms. McClure appears to have the education, experience and ability to utilize the word processing features without a great deal of difficulty.
Ms. McClure was courteous, respectful and answered all questions asked at the hearing. . . . She acknowledges that she made substantial mistakes and is fully aware that her punishment may be severe.
The master also noted that Ms. McClure, “almost as an afterthought, . . . revealed that she had a bout with alcohol (vodka) which resulted in her being hospitalized at Bridgeway in Little Rock for seventeen days commencing in late April 2001.... Obviously this conduct is not an excuse, but may best explain her conduct.”
Based upon the foregoing, we hold Ms. McClure in contempt of this court for wilfully fading to comply in a timely manner with the commands of the writs issued in the above-styled actions. In holding Ms. McClure in contempt, we note that she may be punished by incarceration, imposition of fine, or both. Poyner v. Arkansas Contractors Lie. Bd., 336 Ark. 83, 985 S.W.2d 298 (1999). However, we take notice that the Board of Certified Court Reporter Examiners held a hearing on September 15, 2001, and considered a complaint filed against Ms. McClure by Josh E. McHughes, an attorney representing one of the appellants in Landers v. Jameson (01-269). The Board, after considering the affidavit of attorney McHughes, the sworn testimony of Ms. McClure and the above-referenced report and findings of fact filed by this court’s master, voted to revoke Ms. McClure’s certification as a certified court reporter.
In view of the action taken by the Board of Certified Court Reporter Examiners, as well as our master’s findings and other matters set out in the contempt proceeding, we fine Ms. McClure in the amount of $530.30, which reflects court reporter expenses incurred by this court. The clerk is also directed to forward a copy of this per curiam order to the Board of Certified Court Reporter Examiners.
Contempt order issued.
The transcript of the July 12, 2001, hearing was filed with this court’s clerk on July 26, 2001.
The Ross v. State transcript was prepared by another court reporter, Ms. Kathryn Begley, and it was filed with this court’s clerk on July 23, 2001.
The Simpson v. State transcript was prepared by another court reporter, Ms. Cheryl Nelson, and it was filed with this court’s clerk on August 13, 2001.
The Handy v. State transcript was prepared by another court reporter, Ms. Cheryl Nelson, and it was filed with this'court’s clerk on August 3, 2001. | [
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Donald L. Corbin, Justice.
This case involves the interpretation of an insurance policy. Appellant James E. Elam purchased a long-term-disability policy from Appellee First Unum Life Insurance Company, through his employer, Smith-Barney. In 1994, Elam elected coverage under the policy for disability due to his having bipolar affective disorder. First Unum recognized Elam’s disability and paid benefits to him from August 9, 1994, through August 9, 1996. First Unum declined to pay further benefits because of a twenty-four-month policy limitation applicable to disability due to mental illness. Elam filed suit against First Unum, contending that the term “mental illness,” as used and defined in the policy, is ambiguous as it applies to his illness. The crux of Elam’s argument is that bipolar affective disorder is a physical illness, with a biological origin, that is treated with medication. The Garland County Circuit Court granted summary judgment to First Unum and found that the plain, ordinary meaning of the term encompassed bipolar affective disorder. We reverse the trial court’s judgment and remand for trial.
The insurance policy at issue provides: “Benefits for disability due to mental illness will not exceed 24 months of monthly benefit payments,” unless the insured meets one of two possible situations not applicable in this case. The policy then provides: “ ‘Mental illness’ means mental, nervous or emotional diseases or disorders of any type.” The parties do not dispute the fact that Elam suffers from bipolar affective disorder. Instead, they dispute whether bipolar affective disorder is a “mental illness” within the meaning of that term as set out in the disability policy.
The record demonstrates that Elam filed a motion for summary judgment, asserting that there were no material issues of fact to be resolved and that the court need only determine the legal issue of whether the policy language was ambiguous. Elam contended that the affidavits of Dr. Bradley C. Diner, M.D., and Dr. Charles L. Bowden, M.D., showed that bipolar affective disorder was a physical, rather than mental, illness. Dr. Diner stated in his affidavit that “[i]t is well accepted in the scientific community that bipolar disorder is a biological condition with hereditary predisposition, and an alteration in brain chemistry is being responsible for the mood disturbance and altered thought process.” Similarly, Dr. Bowden stated that, in his opinion, bipolar affective disorder has a biological origin. Dr. Bowden also opined that “there is no longer any reasonable doubt among informed members of the medical community that Bipolar Affective Disorder has a biological origin” and that this principle has gained “near universal acceptance in the medical community.”
First Unum also filed a motion for summary judgment, contending that the policy plainly and unambiguously excluded further benefits to Elam for disability due to mental illness and that bipolar affective disorder is a mental illness. In support of its motion, First Unum submitted portions of depositions given by Dr. Diner and Dr. Joe Backus, M.D., Elam’s treating physician. In particular, First Unum relied on the following information: (1) the precise cause of bipolar affective disorder is unknown, as it cannot be detected by such diagnostic tools as brain scans or blood tests; (2) diagnosis is based primarily on the patient’s behavior, clinical presentation, and history; (3) psychiatrists are unable to predict the onset of symptoms based on any physical or biological indicator; (4) individuals suffering from the disorder are treated exclusively by psychiatrists, using a combination of drugs and psychotherapy; and (5) the medical and psychiatric communities officially classify bipolar affective disorder as a mental illness, regardless of their opinion that the disorder has a biological origin.
In response to First Unum’s motion, Elam submitted the depositions of Drs. Diner and Backus in their entirety, which reflected the following information: (1) bipolar affective disorder is caused by an imbalance of chemicals or neurotransmitters in the brain; (2) the disorder is distinguishable from a personality disorder, which is triggered by social stress, such as the death of a loved one; and (3) the disorder is treated with medication, to stabilize the neurotransmitter blood levels in the brain, while psychotherapy is used primarily to help educate the patient about the illness and to help him adapt to the life changes that the illness brings. Elam also offered his own affidavit, to which were attached approximately twenty-five articles from various sources, including newspapers, magazines, mental-health pamphlets, and a law journal. Collectively, these sources report that certain disorders of the brain, including bipolar affective disorder, are no longer viewed as mental illnesses due to the apparent consensus in the medical community that such disorders have physical origins. Finally, Elam relied on the affidavit of Dr. Diner, which reflected that there is a general trend in psychiatry to move away from the classification of illnesses by symptoms in favor of classifying them according to their causes or origins. As an example of this trend, Dr. Diner’s affidavit contained the following disclaimer from the introduction to the Fourth Edition of the Diagnostic and Statistical Manual (DSM-IV):
Although this volume is titled The Diagnostic and Statistical] Manual of Mental Disorders, the term mental disorder unfortunately implies a distinction between “mental” disorders and “physical” disorders that is a reductionistic anachronism of mind/body dualism. A compelling literature documents that there is much “physical” in “mental” disorders and much “mental” in “physical” disorders. The problem raised by the term “mental” disorders has been much clearer than its solution, and, unfortunately, the term persists in the title of the DSM-IV because we have not found an appropriate substitute.
After considering the evidence offered by both parties, the trial court ruled that the definition of “mental illness” provided in the disability policy is unambiguous when the term is afforded its plain and ordinary meaning. The trial court , found that Arkansas law requires that contract terms, such as those contained in insurance policies, be interpreted according to a layperson’s understanding of those terms. The trial court concluded:
The common, ordinary and lay understanding of the term “mental illness” encompasses bi-polar affective disorder. This interpretation is further supported by the testimony of Plaintiff s treating and consulting psychiatrists, Dr. Bradley Diner and Dr. Joe Backus, that the psychiatric community classifies bi-polar affective disorder as a mental illness regardless of the precise cause or etiology of that disease. As used in Defendant’s insurance policy, that term is not ambiguous.
Based on these conclusions, the trial court granted summary judgment to First Unum.
Elam appealed to the Arkansas Court of Appeals. After reviewing the evidence submitted by the parties, as weH as varying case law on this issue from other jurisdictions, the court of appeals concluded that the policy’s language was ambiguous. It thus reversed the trial court’s judgment and remanded for trial on the issue of whether Elam’s disorder is a mental illness. See Elam v. First Unum Life Ins. Co., 72 Ark. App. 54, 32 S.W.3d 486 (2000). Both parties filed for review of that decision. Elam sought review on the ground that the court of appeals erred when it refused to enter judgment in his favor once it concluded that the policy was ambiguous. First Unum, on the other hand, sought review of the initial determination that the policy was ambiguous. We granted review pursuant to Ark. Sup. Ct. R. 1-2(e). When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed in this court. See Regions Bank & Trust v. Stone County Skilled Nursing Facil., Inc., 345 Ark. 555, 49 S.W.3d 107 (2001); Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). Thus, we review the trial court’s judgment, not that of the court of appeals.
Elam argues that the trial court erred in granting summary judgment to First Unum and concluding, as a matter of law, that the “mental illness” limitation in the insurance policy is unambiguous. We agree that summary judgment was improper, based on the circumstances of this case.
Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entided to judgment as a matter of law. City of Lowell v. City of Rogers, 345 Ark. 33, 43 S.W.3d 742 (2001); Elam v. Hartford Fire Ins. Co., 344 Ark. 555, 42 S.W.3d 443 (2001). The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. BPS, Inc. v. Parker, 345 Ark. 381, 47 S.W.3d 858 (2001); Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000). Thus, summary judgment is not proper, where, although the actual facts are not in dispute, they may result in differing conclusions as to whether the moving party is entitled to judgment as a matter of law. Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998) (per curiam) (citing Ark. R. Civ. E 56(c); Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991)). See also City of Lowell, 345 Ark. 33, 43 S.W.3d 742; Ultracuts Ltd. v. Wal-Mart Stores, Inc., 343 Ark. 224, 33 S.W.3d 128 (2000). In other words, where different conclusions may be reached regarding what the undisputed facts demonstrate, summary judgment is inappropriate.
The parties do not dispute the underlying facts of this case, i.e., that Elam suffers from bipolar affective disorder and has suffered from the illness for years. What is disputed is the meaning of the term “mental illness,” as it is used and defined in the insurance policy issued to Elam by First Unum. The parties essentially agreed that resolution of this issue required the trial court to look beyond the face of the policy, as both parties submitted disputed extrinsic evidence in an attempt to define the term. The trial court’s order demonstrates that it relied on that extrinsic evidence in determining that the term was commonly understood and thus unambiguous. This was error.
The law regarding construction of an insurance contract is well settled. If the language of the policy is unambiguous, we will give effect to the plain language of the policy without resorting to the rules of construction. Norris v. State Farm Fire & Cas. Co., 341 Ark. 360, 16 S.W.3d 242 (2000); Western World Ins. Co. v. Branch, 332 Ark. 427, 965 S.W.2d 760 (1998). On the other hand, if the language is ambiguous, we will construe the policy liberally in favor of the insured and strictly against the insurer. Id. Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one reasonable interpretation. Norris, 341 Ark. 360, 16 S.W.3d 242; Smith v. Prudential Prop. & Cas. Ins. Co., 340 Ark. 335, 10 S.W.3d 846 (2000). Ordinarily, the question of whether the language of an insurance policy is ambiguous is one of law to be resolved by the court. Norris, 341 Ark. 360, 16 S.W.3d 242; Western World, 332 Ark. 427, 965 S.W.2d 760. Where, however, parol evidence has been admitted to explain the meaning of the language, the determination becomes one of fact for the jury to determine. See Smith, 340 Ark. 335, 10 S.W.3d 846; Southhall v. Farm Bureau Mut. Ins. Co., 276 Ark. 58, 632 S.W.2d 420 (1982).
Our case law demonstrates that where there is a dispute as to the meaning of a contract term or provision, be it an insurance or other contract, the trial court must initially perform the role of gatekeeper, determining first whether the dispute may be resolved by looking solely to the contract or whether the parties rely on disputed extrinsic evidence to support their proposed interpretation. As Justice George Rose .Smith explained, “[t]he construction and legal effect of written contracts are matters to be determined by the court, not by the jury, except when the meaning of the language depends upon disputed extrinsic evidence.” Id. at 60, 632 S.W.2d at 421 (emphasis added). Thus, where the issue of ambiguity may be resolved by reviewing the language of the contract itself, it is the trial court’s duty to make such a determination as a matter of law. On the other hand, where the parties go beyond the contract and submit disputed extrinsic evidence to support their proffered definitions of the term, this is a question of fact for the jury. In the latter situation, summary judgment is not proper.
We cannot say that the term “mental illness” is ambiguous looking only to the face of the policy. Rather, the only way that term may become ambiguous is by looking to the conflicting evidence submitted by the parties, which included the affidavits and depositions of three physicians, an excerpt from the DSM-IV, and articles from various sources. Both parties went beyond the four corners of the policy and relied on this extrinsic evidence to support their respective interpretations of the term “mental illness.” Elam claimed that the evidence showed that the term did not include those illnesses having physical causes, while First Unum asserted that, regardless of the cause, the evidence showed that bipolar affective disorder is classified, diagnosed, and treated as a mental illness by psychiatrists. Accordingly, the trial court erred in resolving this issue as a matter of law by granting summary judgment to First Unum. We therefore reverse the trial court’s judgment and remand for the jury to resolve whether, based on the disputed extrinsic evidence offered by the parties, the term “mental illness,” as it is used and defined in the policy, is ambiguous as it applies to Elam’s diagnosis of bipolar affective disorder. In resolving this issue, the jury shall be instructed on the relevant law regarding construction of an insurance contract.
Circuit Court reversed and remanded; Court of Appeals reversed.
GLAZE, J., not participating. | [
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Jim Hannah, Justice.
Appellant Robert Todd Burmingham appeals his convictions on four felony counts including rape, aggravated robbery, kidnapping, and residential burglary earning him a life sentence for the rape conviction, forty years for aggravated robbery, twenty years for kidnapping, and twenty years for burglary. Burmingham raises one point on appeal, arguing that his right to a speedy trial was violated. We affirm.
On September 15, 1997, Burmingham was arrested in Cross County for two kidnappings and two rapes that occurred earlier in 1997. After his arrest, Burmingham was charged by criminal information on September 19, 1997, with two of four purported incidents. The original information contained seven counts, with counts 1-3 detailing the events and charges related to one incident in Cross County and counts 4-7 detailing the events and charges related to a second incident also in Cross County. This information was styled in Cross County as Cross CR97-150. The third and fourth incidents were charged separately in Lee County (Lee CR97-81) and Cross County (Cross CR98-2), but these matters have not proceeded to trial. Counts 1-3 of Cross CR97-150 were prosecuted to conviction after a jury trial on November 16, 1998, ending in a guilty verdict on all counts and earning Burmingham eighty years in prison. Burmingham appealed that conviction to this court, and this court affirmed the conviction on September 21, 2000, in Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000) (“Burmingham 2”). This appeal stems from Burmingham’s conviction on counts 4-7 of Cross CR97-150.
Because Burmingham’s main point on appeal deals with whether he received a speedy trial pursuant to the Arkansas Rules of Criminal Procedure, a timeline of the events leading up to his trial and conviction on April 17, 2000, is necessary. As noted, Burmingham was arrested on this set of charges on September 15, 1997, and the criminal information was filed against him on September 19, 1997. Thus, the speedy-trial clock began running on September 15, 1997. See Ark. R. Crim. P. 28.1(c) and 28.2(a); Smith v. Plegge, 342 Ark. 232, 27 S.W.3d 402 (2000); Osborn v. State, 340 Ark. 444, 11 S.W.3d 528 (2000); Hicks v. State, 340 Ark. 605, 12 S.W.3d 219 (2000).
On November 11, 1997, Burmingham sought and received a continuance to March 16, 1998, in the previously charged Lee County case. On January 6, 1998, the Cross County Circuit Court held a hearing at which Burmingham pleaded “not guilty,” and the State was directed to elect the charges on which it was to proceed first. This hearing was not transcribed. The trial court filed the order from that hearing on January 9, 1998.
On January 14, 1998, Burmingham’s attorney, Wayne Emmons, filed a motion titled “Motion for Continuance of Motion Dates and Trial Date” in which he indicated that due to the massive amounts of discovery involved in the charges in the information, he wanted the State to proceed with one incident first and then try the second incident later. According to the trial court’s statements later at a speedy-trial hearing on this issue, this request stemmed from a conversation counsel and the court had at the January 6, 1998, hearing at which the court directed the State to proceed with only one of the incidents at a time. Following this motion, the prosecutor filed a letter on January 27, 1998, indicating that the State would proceed with counts 1-3 first and then proceed with counts 4-7 afterwards. The record does not contain an order detailing the prosecutor’s decision.
On March 10, 1998, Burmingham filed a “motion to adopt all motions filed in each case” to avoid clerical error and because there were four cases charged during this time and motions were being filed in every case. On March 16, 1998, the trial court granted this motion, and the docket sheets indicate that the court also noted approval of this request on April 28, 1998. On April 27, 1998, Burmingham moved for a continuance of the May 11, 1998, trial date scheduled for counts 1-3, and this was approved that same day. On March 25, 1998, the Lee County Circuit Court granted a continuance in that case.
On May 5, 1998, Burmingham filed a petition for a mental examination, and the trial court ordered the mental examination on May 6, 1998. The mental examination report was filed on July 13, 1998. Over a month later on August 24, 1998, Emmons asked to be relieved as counsel due to health problems, and the court granted that motion on that same day. Attorney Randall Miller was appointed as counsel on August 26, 1998, and he entered his appearance and filed a motion for continuance on August 28, 1998. The motion for continuance was granted on September 10, 1998. Ultimately, trial was held on counts 1-3 from November 16-20, 1998, and Burmingham was convicted on those counts.
Burmingham’s next significant motion was filed on May 5, 1999, in the Lee County case wherein he asked for a continuance of the trial date in that case. The docket sheet indicates that the motion was granted, and the case was continued to August 30, 1999, with a pretrial hearing set for July 30, 1999. On the remaining counts 4-7 in Cross County, Burmingham filed a motion for continuance of that case on July 14, 1999, and it was granted by the court that same day. The first trial was held on counts 4-7 beginning September 14-16, 1999, when a mistrial was declared on September 16, 1999. Prior to trial, Burmingham’s counsel filed a motion for dismissal due to a speedy-trial violation, and the court heard and denied this motion on September 14, 1999.
Finally, the second trial was held in this case on counts 4-7 beginning April 17, 2000. Again, prior to trial, defense counsel moved to dismiss the case due to a speedy-trial violation, and the court heard arguments from counsel prior to the jury’s deliberations during the punishment phase of trial. The record reveals that the trial court ruled that he was very familiar with the proceedings in the matter, having presided over the cases from the beginning, and the court recalled that Emmons requested that the charges be separated by the State because of his inability to prepare for the entire case at once. The court further attributed the time to the defendant because the severance was for his benefit and at his request, and the court further found that because Emmons filed the “motion to adopt all motions from other cases,” all continuances requested in those cases also were applied in this case. The judgment and commitment order was entered on May 5, 2000. Burmingham filed his notice of appeal from this conviction on May 23, 2000.
On appeal, Burmingham argues that the trial court erred in not dismissing counts 4-7 because he was denied a speedy trial on these severed counts. Burmingham notes that the trial on these counts was held two years after he was charged, so the burden shifts to the State to justify the delay. Burmingham argues that the severance of the multiple unrelated counts from those involved in Burmingham I does not act to toll the running of the speedy-trial time limits under Rule 28.3(a)’s “trials of other charges against the defendant.” Burmingham contends that, nothing in the record shows that he specifically asked for counts 4-7 to be included in the original motion for continuance filed on January 14, 1998. Burmingham argues that the case of Weaver v. State, 313 Ark. 55, 852 S.W.2d 130 (1993), stands for the proposition that when a defendant is charged with multiple counts and a motion for severance is granted, the State must try him within one year on all of the counts. Burmingham further notes that the State’s reliance on Cash v. State, 40 Ark. App. 40, 842 S.W.2d 440 (1992), and Lewis v. State, 307 Ark. 260, 819 S.W.2d 689 (1991), is unavailing as they predate Weaver and can be confined to their facts. Burmingham argues that at least 541 days passed before he was tried on the matter. Furthermore, Burmingham argues that even including the continuances in Burmingham I, he was tried outside of the one-year time period required to meet the speedy-trial requirements.
The State responds by making alternative arguments. First, the State argues that Burmingham failed to make even a prima facie showing of a violation because under Rule 28.2(c), he was brought to trial within twelve months of the mistrial on counts 4-7, thus keeping him within the time for speedy trial. See Dean v. State, 339 Ark. 105, 3 S.W.3d 328 (1999). Alternatively, the State argues that should the court not consider September 17, 1999, as the date from which to begin counting, Burmingham was still brought to trial within the twelve-month period of includable days. The State notes that Burmingham was arrested on September 15, 1997, and tried for the first time on September 14, 1999, creating a surplus of 364 days over the twelve-month time limit for which the State must account. By the State’s calculations, either 380 days or 378 days can be excluded from the time, thus bringing the trial in just under the required amount. The State argues that the Weaver case is distinguishable from Lewis and Cash, and that Lewis and Cash are factually similar to this case on the issue of severance and speedy trial. In addition, the State argues that because Burmingham filed a motion, which was granted, to “adopt” all motions in each case, every motion for continuance filed in each case serves to continue the other cases, resulting in more than sufficient excludable time.
The basic rule regarding speedy trial is that any defendant in circuit court who is not brought to trial within twelve months from the date of his arrest is entitled to have the charges dismissed with an absolute bar to prosecution. See Ark. R. Crim. P. 28.1(c) and 28.2(a); Smith, supra, Osborn, supra; Hicks, supra. When a defendant is not brought to trial within a twelve-month period, the State has the burden of showing the delay was legally justified. Webb v. Ford, 340 Ark. 281, 9 S.W.3d 504 (2000). Once the defendant has made a prima facie showing of a violation of Rule 28.1, the State bears the burden of showing that there has been no violation, in that some of the time comprising the one-year period provided in the rule is to be excluded as “legally justified.” Jones v. State, 329 Ark. 603, 951 S.W.2d 308 (1997). It is generally recognized that a defendant does not have to bring himself to trial and is not required to bang on the courthouse door in order to preserve his right to a speedy trial. Id. The burden is on the courts and the prosecutors to see that trials are held in a timely fashion. Id. Under Rule 28.2 of the Arkansas Rules of Criminal Procedure, the speedy-trial period commences to run “without demand by the defendant.” Id. See also, Gwin v. State, 340 Ark. 302, 9 S.W.3d 501 (2000). Ark. R. Crim. P. 28.3(a) excludes from the speedy-trial calculation the delay resulting from an examination and hearing on a defendant’s competency. See also, Morgan v. State, 333 Ark. 294, 971 S.W.2d 219 (1998). The period of time from the date an exam is ordered to the report’s file date is properly excludable for speedy-trial purposes. Id. See also, Brawley v. State, 306 Ark. 609, 612-13, 816 S.W.2d 598 (1991). Rule 28.3 of the Arkansas Rules of Criminal Procedure provides in relevant part that:
the following periods shall be excluded in computing the time for trial. Such periods shall be set forth by the court in a written order or docket entry, but it shall not be necessary for the court to make the determination until the defendant has moved to enforce his right to a speedy trial pursuant to Rule 28 unless it is specifically provided to the contrary below. The number of days of the excluded period or periods shall be added to the time applicable to the defendant as set forth in Rules 28.1 and 28.2 to determine the limitations and consequences applicable to the defendant.
* * *
(c) The period of delay resulting from a continuance granted at the request of the defendant or his counsel. All continuances granted at the request of the defendant or his counsel shall be to a day certain, and the period of delay shall be from the date the continuance is granted until such subsequent date contained in the order or docket entry granting the continuance.
The court observes that when a case is delayed by the accused and that delaying act is memorialized by a record taken at the time it occurred, that record may be sufficient to count as excluded time attributable to the defendant. Id. (citing McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990)). However, the trial court’s failure to comply with Rule 28.3 does not result in automatic reversal. For instance, in Goston v. State, 326 Ark. 106, 930 S.W.2d 332 (1996), the trial court did make some docket entries attributing a given time period to the appellant for speedy-trial purposes. However, the trial court correctly charged other delays to the defendant without a written order or notation, given that “the record clearly demonstrates that these [delays] were attributable to [the appellant] or were legally justified.” Id., 326 Ark. at 111. In short, where the delay is caused by the defendant, this court has demonstrated a willingness to exclude the time when there is at least some contemporaneous record of the proceedings reflecting the delaying act.
Furthermore, Rule 28.2(c) provides that when a defendant is to be retried following a mistrial, “the time for trial shall commence running from the date of the mistrial . . .” which has been interpreted by this court to mean that the twelve-month period for speedy trial shall commence running from the date of mistrial. See Dean, supra; Odom v. State, 311 Ark. 576, 845 S.W.2d 524 (1993). Pursuant to these cases, the twelve-month “counter” starts running anew after a mistrial has been declared. As such, the time after the mistrial, which totals less than twelve months, does not count in the speedy-trial calculation and has no bearing on this appeal.
However, by the State’s own calculation, Burmingham’s first trial on counts 4-7 occurred 364 days after the twelve-month period for speedy trial passed. As such, in order to prevail, the State must show that more than 364 days of delay were attributable to Burmingham between September 15, 1997, when he was arrested, and September 14, 1999, when the first trial started.
We agree with the State that Burmingham’s trial was held well within the time for speedy trial based on the motions for continuance filed by Birmingham in this and his other cases and counted against him pursuant to his “motion to adopt all motions” granted on March 16, 1998. Because this motion was granted, every motion for continuance granted in every other case can and must be counted against Burmingham. Furthermore, because we reach this determination based on the motions to continue, we do not address the parties’ arguments regarding the effect of the severance of the charges in the Cross CR97-150 felony information.
As the State argues, the premise in Hicks, supra, should apply to these facts as well. In Hicks, a defendant’s speedy-trial motion was denied when this court found that his “adoption” of his co-defendant’s motions, including motions for continuances, acted to toll the running of the speedy-trial time limitations. Pursuant to this rule, all continuances granted at the request of the defendant, regardless of the case in which they are granted, apply to each case. The reasoning for this is clear —■ after filing such a motion, a defendant cannot pick and choose which motions he would like to apply when he has specifically moved for them all to apply.
By applying the above dates, it is clear that more than 364 days can be excluded from the speedy-trial calculation. First, on November 10, 1997, Burmingham’s motion for continuance until March 16, 1998, was granted that day in the Lee County case. This delay accounts for 126 days. On April 28, 1998, the trial court granted Burmingham’s motion for continuance on counts 1-3 in the Cross County case pursuant to Burmingham’s motion filed April 27, 1998. This continuance lasted at least until August 28, 1998, when Burmingham’s new attorney filed a new motion for continuance in Burmingham I. This time accounts for 122 days. On September 10, 1998, Burmingham’s motion for continuance in Burmingham I was granted until trial on November 16, 1998. This accounts for 66 days. On February 16, 1999, Burmingham’s motion for continuance in the Lee County case was granted through the trial date set for May 1999, when Burmingham’s new attorney again filed a motion for continuance in that case, which was granted on May 4, 1999. This period accounts for 76 days. Finally, Burmingham’s motion for continuance in this case was granted on July 14, 1999, through the start of the first trial beginning September 14, 1999. This totals 51 days.
Overall, these delays in each case account for 441 days of excludable time, well over the necessary 364 days for which the State needed to account. Thus, there was no speedy-trial violation in this case, and Burmingham’s conviction is affirmed.
Rule 4-3(h)
The transcript of the record in this case has been reviewed in accordance with Ark. Sup. Ct. R. 4-3(h) which requires, in cases in which there is a sentence to life imprisonment or death, that we review all prejudicial errors in accordance with Ark. Code Ann. § 16-91-113(a) (Repl. 1997). None have been found.
Affirmed. | [
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Per Curiam.
Appellant, Eric Z. Grillot has filed a motion for a rule on tíre clerk. In Grillot v. State, 346 Ark. 25, 53 S.W.3d 525 (2001), we ordered appellant’s attorney, Ralph J. Blagg, to file a motion for rule on the clerk in which he accepted full responsibility for not timely filing the transcript in this case. Mr. Blagg timely filed his motion, and now accepts responsibility for the late tender of the transcript.
We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Appellant has retained other counsel, Lynn Lisk and Pat Marshall of Ed Webb and Associates, in this matter, and they have entered their appearance and motion for substitution of counsel of record. That motion is granted, and Ralph Blagg’s motion to withdraw as counsel is also granted.
The motion filed by Lynn Lisk and Pat Marshall to file a belated appeal is hereby granted. The clerk shall establish a briefing schedule. | [
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Per Curiam.
Appellant, Gyronne Buckley, by and through his attorney, Jack T. Lassiter, filed a motion to reset the briefing schedule in this case.
On June 7, 2001, appellant’s counsel filed a motion to withdraw as attorney of record and lodged a partial record. Flowever, appellant did not file a brief, pursuant to Anders v. California, 386 U.S. 738 (1967), and our Rule 4 — 3(j)(1), stating there was no merit to the appeal. In Buckley v. State, 345 Ark. 570, 48 S.W.3d 534 (2001) (per curiam), we ordered appellant’s counsel to “either file a motion to withdraw with an accompanying brief, pursuant to Rule 4 — 30)(1), or rebrief the issues in this appeal and argue the merits.” Counsel had thirty days from the decision to file the appropriate documents.
Appellant’s counsel now requests additional briefing time because the court reporter paid a deposit on the transcript prior to our per curiam order, and she obtained an extension from the trial court to August 26, 2001. Specifically, counsel requests that we extend the briefing schedule to a date subsequent to August 26, 2001, the completion and fifing of the transcript.
We grant appellant’s motion. An appropriate briefing schedule will be set the clerk of this court.
Motion granted.
ARNOLD, C.J., not participating. | [
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Per Curiam.
In 2004, appellant Marcus D. Young entered a guilty plea to a charge of committing a terroristic act. A jury sentenced him to 240 months’ imprisonment in the Arkansas Department of Correction. Appellant appealed as to evidence presented to the jury, and the Arkansas Court of Appeals affirmed. Young v. State, CACR 04-925 (Ark. Ct. App. Apr. 13, 2005).
Appellant, through counsel, filed a petition for relief under Arkansas Rule of Criminal Procedure 37.1 and two amended petitions, which were denied by the trial court for lack of verification. This court reversed and remanded for the trial court to consider the original petition because it was properly verified. Young v. State, CR 06-587 (Ark. Feb. 15, 2007) (per curiam). On April 3, 2007, the trial court entered an order that again denied appellant relief under Rule 37.1. On May 1, 2007, appellant filed a motion for reconsideration in the trial court, and, on June 6, 2007, he filed a notice of appeal as to the denial of the motion for reconsideration. Appellant has lodged an appeal in this court, and the State now brings this motion to dismiss the appeal.
The State alleges in its motion that the notice of appeal was not timely. First, the State alleges that the motion to reconsider was a motion for rehearing prohibited under Arkansas Rule of Criminal Procedure 37.2(d) and asserts that the notice of appeal was not timely as to the order denying postconviction relief. Under Arkansas Rule of Appellate Procedure-Criminal 2(a)(4), a notice of appeal as to an order that was entered denying postconviction relief must be filed within thirty days of the date of the order. Next, the State contends that the notice of appeal was also not effective as to a denial of the motion to reconsider because the deemed denied provisions of our rules of procedure do not apply to proceedings on a Rule 37.1 petition.
We need not consider whether the notice of appeal was effective as to the order denying the Rule 37.1 petition because the notice of appeal only referenced the denial of the motion for reconsideration. The record does not contain any other notice of appeal.
Nor does the record contain an order that denies the motion to reconsider. Whether the motion was permissible or not, the deemed denied appellate rule does not apply to appeals in proceedings on a Rule 37.1 petition. Morgan v. State, 360 Ark. 264, 200 S.W.3d 890 (2005) (per curiam). Our clerk accepted the record in error because there was no denial of the motion for reconsideration. Accordingly, we grant the motion to dismiss.
Motion granted; appeal dismissed. | [
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Tom Glaze, Justice.
On July 19, 2006, at approximately 3:00 a.m., appellant Diana McSparrin repeatedly rammed her car five or six times into Joshua Dark’s 1991 GMC Jimmy, which was parked outside Dark’s home and unoccupied at the time. McSparrin’s successive impacts moved Dark’s vehicle a distance of almost fifty feet, until it stopped against a car belonging to McSparrin’s ex-boyfriend, Thomas Dennis. Dennis lived next door to the Dark family, and McSparrin testified that she might have been upset with Dennis before she began drinking at Dennis’s house, but said that she could not recall ramming into Dark’s vehicle because she was intoxicated at the time.
After hearing McSparrin’s first impact into Dark’s vehicle, Dark’s father called 911. Officers from the Fayetteville Police Department arrived at the scene and arrested McSparrin for Driving While Intoxicated after she failed a sobriety test. McSparrin’s insurer, Direct Insurance Company (Direct), later filed an action for a declaratory judgment and alleged that because McSparrin had intentionally driven her vehicle into Joshua Dark’s vehicle, Direct did not have a duty to defend or indemnify McSparrin under an exclusionary clause in her automobile pohcy which reads, “[Direct] do[es] not provide Liability Coverage for any covered person who intentionally causes bodily injury or property damage.”
The trial court held a one-day bench trial, and found that, although “it is undisputed Ms. McSparrin was drunk,” the facts demonstrated that McSparrin intentionally rammed Dark’s vehicle. As a result, the trial court further held that the exclusionary clause applied, and that Direct did not have a duty to defend or indemnify McSparrin. McSparrin raises one point on appeal, arguing that the trial court erred because she could not have intentionally rammed Dark’s vehicle due to her voluntary intoxication.
The standard of review on appeal from a bench trial is whether the circuit court’s findings were clearly erroneous or clearly against the preponderance of the evidence. See Murphy v. City of West Memphis, 352 Ark. 315, 101 S.W.3d 221 (2003). This court views the evidence in a light most favorable to the appellee, resolving all inferences in favor of the appellee. See Ark. Transit Homes, Inc. v. Aetna Life & Cas., 341 Ark. 317, 16 S.W.3d 545 (2000).
When construing insurance policies, this court adheres to the rule that, where terms of the policy are clear and unambiguous, the policy language controls, and absent statutory strictures to the contrary, exclusionary clauses are generally enforced according to their terms. Smith v. Shelter Mut. Ins. Co., 327 Ark. 208, 937 S.W.2d 180 (1997). “The insurer has the burden of proving an exclusion.” Ark. Farm Bureau Ins. Fed’n v. Ryman, 309 Ark. 283, 286, 831 S.W.2d 133, 134 (1992).
This court has not directly addressed whether voluntary-intoxication prevents an individual from forming the intent required to trigger an exclusionary clause. Although the parties concede that there are no Arkansas cases directly on point, McSparrin relies on a case decided by the federal district court, Great Am. Ins. Co. v. Ratliff, 242 F. Supp. 983 (E.D. Ark. 1965). There, an individual named Allen Holland repeatedly rammed T.J. Ratliff from behind as the vehicles traveled on an Arkansas state highway. Eventually, Ratliffs vehicle turned over, causing him personal injuries. Ratliff filed suit against Holland for damages, and Holland’s insurance company filed an action for a declaratory judgment, asserting that it did not have a duty to defend or indemnify Holland due to an exclusionary clause which provided that the policy did not apply to injuries “caused intentionally by or at the direction of the insured.” Id. at 985. The federal district court found that a preponderance of the evidence showed that Holland “intended to inflict at least some degree of injury and damage upon Ratliff and his property” based on the principle that “a person in the possession of his faculties intentionally does an act from which injury to another will probably and forseeably result.” Id. at 992. Accordingly, “Ratliffs injuries were excluded from the coverage of [Holland’s] policy.” Id.
McSparrin asserts that the Ratliff decision was based on the ill will that existed between the parties, which she contrasts with the facts in her case; she contends there was no evidence of animus between herself and Joshua Dark. Additionally, McSparrin argues that the Ratliff case suggests an individual’s actions are not intentional if he is not in complete control of his faculties. However, in Ratliff, there never was an issue as to whether Holland was “in possession of his faculties” when he rammed Ratliff. Regardless, more convincing and applicable to the present appeal, is the Ratliff court’s statement that “the presence or absence of particular intent can be inferred logically and legally from the facts and circumstances leading up to, surrounding, and following the act or omission in question.” Id. Just as the Ratliff court held that Holland acted intentionally because he pursued and repeatedly drove into the rear of Ratliff s car, finally causing it to overturn, the trial court in the present case similarly found that after McSparrin’s initial impact with Joshua Dark’s vehicle, she rammed it five additional times, backing up approximately ten feet and revving the engine before each successive impact.
Direct responds to McSparrin’s point for reversal by asserting that the “key legal principles” found in a decision by the Arkansas Court of Appeals in National Investors Life & Casualty Insurance Co. v. Arrowood, 270 Ark. 617, 606 S.W.2d 97 (Ark. Ct. App. 1980), are applicable to this appeal. In Arrowood, James Arrowood shot his ex-wife in the leg and his insurance company filed an action for a declaratory judgment, alleging that the injuries to Sandra Arrowood were intentionally caused and therefore excluded from coverage by either James or Sandra Arrowood’s homeowner’s policies. James Arrowood testified that “he had no reason to shoot or kill Sandra,” and that he had no recollection of the events surrounding the shooting of his ex-wife, other than taking “a bunch of Valium.” Id. at 620. The trial court held that the policies’ exclusionary clauses were not applicable, and the insurance companies appealed, arguing that the trial court “erred in finding that liability coverage was not excluded under the policy for bodily injury which is either expected or intended from the standpoint of the insured.” Id. at 621, 606 S.W.2d at 100.
On review, the court of appeals first noted the general rule that coverage exists under insuring contracts and exclusion clauses for the unintended results of an intentional act, but not for damages assessed because of an injury which was intended to be inflicted. The Arrowood court then cited Ratliff, supra, to hold that determining whether an act was intentional was “a matter of weighing all the facts and circumstances bearing on the incident in its entirety,” and reversed the trial court, noting the long history of James Arrowood’s previous acts showing a propensity to violence against his ex-wife. Id. at 624, 606 S.W.2d 101. As to James Arrowood’s alleged Valium-induced memory loss, the court of appeals stated the following:
[WJhile no firm conclusions can be founded upon it, even James’ professed inability to remember any part of the incident, which we regard as credible, seems more consistent with a finding that the injury was intentional rather than accidental, as even the human mind often obliterates from its memory behavior which it wants to disavow.
Id. Further, the court of appeals noted that “James Arrowood’s testimony is that he had no recollection of any part of the events of the shooting, so how can he say what his intention was at that exact moment if his memory is so lacking?” Id. at 624, 602 S.W.2d at 102.
Similar to James Arrowood, McSparrin contends that her intoxication caused her to “blackout” and that she has no recollection of ramming Dark’s vehicle repeatedly. Weighing against her is the fact that she rammed Dark’s vehicle until it rested against that of her ex-boyfriend — whom she was upset with — that she giggled as she repeatedly backed up and rammed Dark’s vehicle, and the fact that her intoxication was at least not so severe that she was cognizant of the fact that Dark’s father had called the police to report her act and called him an “asshole” for doing so before her arrest. And, while McSparrin was arrested for DWI, showing at least some level of intoxication, she later made a recorded statement for her insurance company admitting that her damage to Dark’s vehicle was intentional.
McSparrin also contends that the trial court’s decision violates public policy, arguing the General Assembly has “endorsed the public policy in favor of compensating victims” because it “has seen fit to mandate automobile insurance coverage while home owners insurance is purely voluntary with the individual.” However, Ark. Code Ann. § 27-22-101 (a) (Repl. 2008) states that the legislative intent of the Motor Vehicle Liability Insurance chapter “is not intended in any way to alter or affect the validity of any policy provisions, exclusions, exceptions, or limitations contained in a motor vehicle policy required by this chapter.” The trial court’s decision that McSparrin’s course of conduct showed that she acted intentionally in repeatedly ramming into Dark’s vehicle is not clearly against the preponderance of the evidence, nor is it contrary to any public policy our General Assembly has announced. '
Affirmed.
McSparrin also cites Talley v. MFA Mutual Insurance Co., 273 Ark. 269, 620 S.W.2d 160 (1981), for support. However, Talley involved the question of reconciling an intentional act — firing a shotgun blast at a car occupied by two individuals — with the unintended result of blindness. | [
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Paul E. Danielson, Justice.
Appellant Carlos Alexander Solis appeals the circuit court’s order granting a default judgment in favor of appellee State of Arkansas. We affirm the circuit court.
The record reveals the following facts. On September 9, 2006, officers of the Bentonville Police Department seized $1,834 in U.S. currency from Solis in connection with his arrest on two counts of delivery of a controlled substance. The prosecuting attorney, on behalf of the State, filed forfeiture proceedings against the $1,834 in U.S. currency on September 12, 2006, and served Solis with a summons and attached complaint on September 19, 2006. The caption of the complaint named the defendant as “$1834.00 U.S. Currency (Carlos Alexander Solis).” The caption of the summons named the defendant as “$1834.00 U.S. Currency.” Under this caption, the summons listed the defendant as “Carlos Alexander Solis.” The text of the summons advised Solis that, in order to avoid a default judgment, he was required to file an answer in writing and in compliance “with the Arkansas Rules of Civil Procedure and/or the Arkansas Inferior Court Rules.” The summons also stated that the answer had to be filed within twenty days of service unless Solis was not a resident of Arkansas, in which case the answer had to be filed within thirty days. Furthermore, the summons instructed Solis that if he wanted to be represented by an attorney, he should immediately contact that attorney to file an answer on his behalf.
On October 6, 2006, Solis, acting through his attorney, filed an answer to the State’s complaint. Solis’s answer was signed only by his attorney and did not contain a verification by Solis. On November 6, 2006, the State filed a motion for default judgment, arguing that it was entitled to a default judgment because Solis’s answer was not verified by Solis’s signature as required by Arkansas Code Annotated section 5-64-505(g)(4) (Supp. 2005). The State’s motion additionally responded to Solis’s objection to discovery and served as an alternative motion to compel. On November 6, 2006, Solis filed a reply. The circuit court granted a default judgment to the State on February 20, 2007.
Solis raises several arguments on appeal. First, Solis argues that a verification is completed by an attorney’s signature, and no further verification is required under section 5-64-505(g)(4) or under the Arkansas Rules of Civil Procedure. Next, Solis contends that if personal verification of his answer was required by statute, then the summons was deficient, because it did not inform him of the verification requirement. He further claims his summons was deficient because it named the $1,834 in U.S. currency as the defendant in the caption rather than Solis. Solis next reasons that even if his answer was not properly verified, the circuit court erred in granting a default judgment because his answer substantially complied with statutory requirements and was therefore sufficient to avoid a default judgment. For his final point, Solis argues that the Arkansas Constitution clearly vests the power to prescribe the rules of pleading, practice, and procedure in the Arkansas Supreme Court. Because of this, Solis suggests that, to the extent the statute regarding forfeiture proceedings does prescribe additional procedural requirements, it unduly infringes upon the power of the judiciary, thereby violating the separation of powers doctrine.
These arguments were all addressed and rejected by this court in Solis v. State, 371 Ark. 590, 269 S.W.3d 352 (2007), in which we affirmed the circuit court’s order of default judgment in favor of the State after the State’s forfeiture of Solis’s 1999 Ford F350 pickup. We reject Solis’s arguments here for the same reasons. See Solis v. State, supra. Therefore, the judgment of the circuit court is affirmed.
Affirmed. | [
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Donald L. Corbin, Justice.
By certification memorandum dated April 2, 2008, the Arkansas Court of Appeals certified the question of whether an attorney, who is also a prosecutor, should be disqualified from representing a parent in a change-of-custody suit when criminal charges are brought by the prosecuting attorney’s office against the other parent’s current spouse. We hold that disqualification is not required because there is not a direct conflict of interest nor is this a case of dual representation, and we remand to the court of appeals for further action.
On August 5, 2002, Appellant Kelly Sullivent Whitmer and Appellee Jeromy Sullivent divorced. Under the terms of the divorce decree, they were awarded joint custody of their three minor children, E.S., G.S., and H.S. Kelly was designated as the physical custodian, with Jeromy receiving reasonable and seasonable visitation privileges. On July 18, 2003, after picking the children up for a visitation period, Jeromy noticed large bruising on G.S.’s buttocks. Jeromy reported the bruising to the Sheridan Police Department and the Department of Health and Human Services. It was later determined that the bruising was the result of a whipping administered by Keith Whitmer, Kelly’s live-in boyfriend. Onjuly 25, 2003, through his attorney, James M. Pratt, Jr., Jeromy filed a petition for a change of custody with the Calhoun County Circuit Court. On August 15, 2003, an agreed order was entered leaving physical custody with Kelly, but requiring that, pending future court orders, Keith was not to be present at any time when the children were with Kelly. About a month later, Kelly married Keith, and the two resumed living together with the children.
A little less than a year after their marriage, from June 25, 2004, to July 1, 2004, Keith repeatedly assaulted Kelly while in the children’s presence. In addition to beating Kelly, who was eight months pregnant with his child, Keith also stabbed her in the stomach with a barbeque fork. On July 2, 2004, Kelly filed an order-of-protection affidavit against Keith with the prosecuting attorney’s office of the Thirteenth Judicial District. The affidavit contained a detailed description of the abuse, as well as the following statement, “I am afraid he is going to kill me and hurt my children.”
On July 8, 2004, Jeromy filed an ex parte petition for temporary custody of the children, to which he attached a copy of Kelly’s affidavit. The circuit court granted his petition that same day. About three months later, on September 30, 2004, Kelly filed a motion to disqualify Pratt, Jeromy’s attorney who was also prosecutor for the Thirteenth Judicial District, from the case due to a conflict of interest or the appearance of one. Therein, Kelly alleged that this conflict existed because the prosecutor’s office was protecting her interest in the criminal prosecution of Keith, but was representing opposing interests in this case. Although she acknowledged that Pratt had arranged for a special prosecutor in the criminal matter, she argued that he should be disqualified because of the past conflict between the two cases. This motion was denied by the circuit court because Pratt had recused in his capacity as prosecutor and the conflict or appearance of a conflict of interest had been removed. The court also reminded the parties that Pratt had been Jeromy’s counsel of record for “a considerable period of time preceding [Kelly’s] application to the prosecuting attorney’s office on July 2, 2004[.]”
Over the course of the next two years, a multitude of proceedings took place before the circuit court. Then, on November 14, 2006, the circuit court granted Jeromy’s petition for a change of custody. Kelly filed a motion for reconsideration or new trial on November 27, 2006, and on January 25, 2007, she filed a notice of appeal from the November 14 order. On January 29, 2007, the circuit court, on its own motion, entered an order explaining, in part, that
[Kelly’s] motion was filed on November 27, 2006, more than 10 days after the court’s disposition order of November 14, 2006. No action was taken on the motion by the court. Pursuant to Rule 4 of the Rules of Appellate Procedure, the motion was deemed denied 30 days following its filing.
On February 2, 2007, Kelly filed another motion for reconsideration and new trial that the circuit court never ruled on. She then filed a supplemental notice of appeal on February 26, 2007, from the January 29 order and all preceding orders. The case was certified to us by the court of appeals, pursuant to Ark. Sup. Ct. R. l-2(a)(5), to resolve the issue of whether the circuit court abused its discretion by refusing to disqualify Jeromy’s attorney, who was also the prosecutor, when Kelly’s husband was charged with battery for assaulting her.
Before addressing the certified question, we note that in response to Kelly’s appeal, Jeromy has raised the jurisdictional issue of whether the appeal should be dismissed as untimely. Rule 4(a) of the Arkansas Rules of Appellate Procedure-Civil sets forth that “a notice of appeal shall be filed within thirty (30) days from the entry of the judgment, decree or order appealed from.” Additionally, Rule 4(b)(1) allows for an extension of time for filing a notice of appeal; specifically,
[u]pon timely filing in the circuit court of a motion for judgment notwithstanding the verdict ... a motion to amend the court’s findings of fact or to make additional findings... a motion for a new trial... or any other motion to vacate, alter, or amend the judgment made no later than 10 days after entry of judgment, the time for fifing a notice of appeal shall be extended for all parties. The notice of appeal shall be filed within thirty (30) days from the entry of the order disposing of the last motion outstanding. However, if the circuit court neither grants nor denies the motion within thirty (30) days of its fifing, the motion shall be deemed denied by operation of law as of the thirtieth day, and the notice of appeal shall be filed within thirty (30) days from that date.
Computation of the time period for securing an appeal is done in accordance with Ark. R. Civ. P. 6. Rule 6(a) provides the following formula:
In computing any period of time prescribed or allowed by these rules . . . the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, legal holiday, or other day when the clerk’s office is closed, in which event the period runs until the end of the next day that the clerk’s office is open. When the period of time prescribed or allowed is less than fourteen (14) days, intermediate Saturdays, Sundays, or legal holidays shall be excluded in the computation. As used in this rule and Rule 77(c), “legal holiday” means those days designated as a holiday by the President or Congress of the United States or designated by the laws of this State.
In this case, the circuit court entered its change-of-custody order on November 14, 2006. In accordance with Rule 6, November 18 (Saturday), November 19 (Sunday), and November 23 (Thanksgiving) are excluded from computation, thus setting the due date for any postjudgment motions at November 29, 2006. Kelly timely filed her first motion for reconsideration or new trial on November 27, 2006. The circuit court did not rule on the motion within thirty days, so it was deemed denied on December 27, 2006. See Ark. R. App. P. — Civ. 4(b)(1). Accordingly, the notice of appeal was due thirty days from the deemed-denied date, or January 25, 2007. Kelly timely filed her notice of appeal on January 25, 2007, thus the appeal is properly before this court. We will now address the certified issue of whether disqualification was required.
Disqualification of an attorney is an absolutely necessary measure to protect and preserve the integrity of the attorney-client relationship; yet, it is a drastic measure to be imposed only where clearly required by the circumstances. Weigel v. Farmers Ins. Co., Inc., 356 Ark. 617, 158 S.W.3d 147 (2004); Craig v. Carrigo, 340 Ark. 624, 12 S.W.3d 229 (2000). We review a circuit court’s decision on whether to disqualify an attorney under an abuse-of-discretion standard. Id. An abuse of discretion may be manifested by an erroneous interpretation of the law. Id. The Arkansas Rules of Professional Conduct are applicable to disqualification proceedings. Id. However, a violation of these rules does not automatically compel disqualification; rather, such matters involve the exercise of judicial discretion. Id.
Rule 1.7 of the Arkansas Rules of Professional Conduct sets forth that, generally, a lawyer cannot represent a client if the representation involves a concurrent conflict of interest. Under the rule, a concurrent conflict of interest exists .if:
(1) the representation of one client will be directly adverse to another client[’]s; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer[.]
Ark. R. Profl Conduct 1.7(a)(l)-(2). Most importantly, Rule 1.7 requires disqualification if there is a concurrent conflict of interest. In this case, there was no direct or concurrent conflict because Pratt, in his duties as prosecutor, represented the people of the Thirteenth Judicial District, and not Kelly, who was the complaining witness. Cf. State Office of Child Support Enforcem’t v. Terry, 336 Ark. 310, 985 S.W.2d 711 (1999) (explaining that a prosecutor empowered to bring charges against a noncustodial parent for failure to pay child support does not represent the custodial parent, such that a conflict of interest cannot exist even if the prosecutor had previously prosecuted the custodial parent for the same crime).
This is also not a case of dual representation requiring disqualification. In City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982), this court explained that an attorney may not sue and defend the same client at the same time. Cash involved a completely distinguishable situation than what is now before this court. Here, Pratt was acting as Jeromy’s attorney when the custody suit was filed against Kelly. Then, when the criminal charges were brought against Keith, Pratt was acting as a representative of the people of the district. Therefore, Pratt was not “defending” Kelly’s interests while he was also “suing” her, and Cash is inapplicable.
Finally, even though no actual conflict existed, the proper steps were taken to remove even the appearance of a conflict of interest. Shortly after the criminal prosecution began, and on the same day Kelly filed her motion to disqualify, an order for designation and appointment of a special prosecutor was entered in the State’s case against Keith Whitmer. Not only did Pratt remove himself from the criminal proceedings, he also removed his staff. We agree with the circuit court that this recusal removed the appearance of a conflict of interest. We further hold that withdrawal from both cases was not required, especially in light of the fact that Pratt had been representing Jeromy in this case for over a year before Kelly’s affidavit was filed with the prosecutor’s office. See Ark. R. Profl Conduct 1.11 (d)(2)(i).
Accordingly, there was no abuse of discretion by the circuit court in refusing to disqualify Jeromy’s attorney. Having answered the certified question, we remand the case to the court of appeals for further action.
In its change-of-custody order, the circuit court stated that the marriage took place in late August 2003, but Kelly testified that they married September 13,2003.
Kelly and Keith divorced on July 18,2006. | [
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Jim Gunter, Justice.
This appeal arises from an order of the Sebastian County Circuit Court forfeiting a $25,000 bond posted by Appellant First Arkansas Bail Bonds, Inc. (“First Arkansas”) to assure court attendance by criminal defendant Adiel Hemandez-Orellana (“Orellana”). We reverse the forfeiture judgment because the circuit court failed to strictly comply with Ark. Code Ann. § 16-84-207 (Repl. 2005) and remand for an order consistent with this opinion.
On October 7, 2005, First Arkansas posted a $25,000 bail bond for Orellana’s release and to assure his attendance on pending charges. Orellana failed to appear at his hearing before the Sebastian County Circuit Court on April 6, 2006. On April 7, 2006, the circuit court entered an order to show cause which was served on First Arkansas on April 10, 2006. On November 3, 2006, the circuit court entered a Bond Forfeiture Summons, directing the circuit clerk to notify First Arkansas to appear on December 13, 2006, to show cause why the full amount of the bond should not be forfeited to Sebastian County.
At the December 13, 2006 hearing, First Arkansas argued that the circuit court violated Ark. Code Ann. § 16-84-207(b)(2)(B) by not immediately issuing a summons for the show-cause hearing upon Orellana’s failure to appear. The circuit court ruled that First Arkansas was properly notified in April 2006 and entered an order forfeiting the $25,000 bond. On December 14, 2006, the circuit court filed its judgment against First Arkansas. First Arkansas now brings this appeal.
On appeal, First Arkansas asserts that the November 3, 2006 summons was not “immediately issued” as required by Ark. Code Ann. § 16-84-207(b)(2)(B). In response, the State contends that (1) First Arkansas has not preserved this argument for appeal; (2) in the alternative, the November 18, 2005 order to show cause was a summons pursuant to Ark. Code Ann. § 16-84-207(b)(2)(B); and (3) even if the order to show cause were not a summons, First Arkansas received immediate notice of Orellana’s failure to appear, and the circuit court’s letter setting and giving notice of the show-cause hearing actually favored First Arkansas.
We review issues of statutory construction de novo. Sykes v. Williams, 373 Ark. 236, 283 S.W.3d 209 (2008) (citing Ryan & Co. AR, Inc. v. Weiss, 371 Ark. 43, 263 S.W.3d 489 (2007)). It is for this court to decide what a statute means, and we are not bound by the circuit court’s interpretation. Id. The basic rule of statutory construction is to give effect to the intent of the General Assembly. Id. In determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. We construe the statute so that no word is left void, superfluous, or insignificant, and meaning and effect are given to every word in the statute if possible. Id. When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need to resort to the rules of statutory construction. Id. We will accept a circuit court’s interpretation of the law unless it is shown that the court’s interpretation was in error. Id. Our court seeks to reconcile statutory provisions to make them consistent, harmonious, and sensible. Id. Statutory service requirements, being in derogation of common law rights, must be strictly construed and compliance with them must be exact. Brennan v. Wadlow, 372 Ark. 50, 270 S.W.3d 831 (2008); Caruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996); Dougherty v. Sullivan, 318 Ark. 608, 887 S.W.2d 305 (1994). However, we will not give statutes a literal interpretation if it leads to absurd consequences that are contrary to legislative intent. Sykes, supra.
We will first address the issue of whether First Arkansas’s argument is preserved for appeal. The State asserts that First Arkansas did not argue below that the order to show cause served on it immediately after Orellana failed to appear was insufficient to fulfill the requirements of the statute. Specifically, the State contends that First Arkansas merely argued that the summons was not issued until November 3, 2006. In reply, First Arkansas asserts that its argument is preserved because it clearly and specifically asserted the requirement in § 16-84-207 (b)(2)(B) that the clerk “immediately issue a summons upon a failure to appear” at the December 13, 2006 hearing.
It is well settled that an appellant must raise and make an argument at trial in order to preserve it for appeal. Strong v. State, 372 Ark. 404, 271 S.W.3d 159 (2008) (citing Raymond v. State, 354 Ark. 157, 118 S.W.3d 567 (2003)). Here, contrary to the State’s contention, First Arkansas is not arguing on appeal that the order to show cause was insufficient to fulfill the requirements of the statute, but rather, is arguing that the November 3, 2006 summons was not “immediate” pursuant to the statute. At the December 13, 2006 hearing, First Arkansas argued that “Arkansas Code 16-84-207 (b) (2) — (b) (2) (B) — requires that the Clerk immediately issue a summon[s] upon a failure to appear” and further pointed out “that the failure to appear was April 6th of2006, and summons was issued on or about November 3rd, 2006.” Therefore, we hold that First Arkansas’s argument is preserved for appeal.
In the alternative, the State asserts that First Arkansas’s argument on appeal should fail because the order to show cause was a summons pursuant to the statute. Specifically, the State contends that, while the order to show cause did not specify a date, it did alert First Arkansas that it would be required to appear and show cause why the bond should not be forfeited if it did not produce Orellana within the time allotted. The State also contends that the fact that the order to show cause did not bear the title “Summons” is not a fatal defect because such a title is not required by § 16-84-207 (b)(2)(B).
Section 16-84-207 states in pertinent part:
(b)(1) If the defendant fails to appear at any time when the defendant’s presence is required under subsection (a) of this section, the circuit court shall enter this fact by written order or docket entry, adjudge the bail bond of the defendant or the money deposited in lieu thereof to be forfeited, and issue a warrant for the arrest of the defendant.
(2) The circuit clerk shall:
(A) Notify the sheriff and each surety on the bail bond that the defendant should be surrendered to the sheriff as required by the terms of the bail bond; and
(B) Immediately issue a summons on each surety on the bail bond requiring the surety to personally appear on the date and time stated in the summons to show cause why judgment should not be rendered for the sum specified in the bail bond on account of the forfeiture.
Id. (emphasis added). This statute clearly requires that the date and time of the show-cause hearing be stated in the summons. Here, there was no date or time specified in the order to show cause; therefore, the order to show cause was not a summons pursuant to § 16-84-207 (b)(2)(B).
We next consider First Arkansas’s argument that the November 3, 2006 summons did not meet the requirements of Ark. Code Ann. § 16-84-207 (b)(2)(B) because it was not “immediately” issued. In response, the State contends that, because First Arkansas was given more than 120 days to find Orellana before the hearing, First Arkansas was placed at an advantage by the process, and applying the statute strictly in this case would create an absurd result.
Arkansas law is long settled that service of valid process is necessary to give a court jurisdiction over a defendant. Brennan, supra. Statutory service requirements, being in derogation of common law rights, must be strictly construed and compliance with them must be exact. See id.; Caruth, supra; Dougherty, supra. Section 16-84-207 clearly requires that the issuance of the summons be immediate. Here, the November 3, 2006 summons was issued nearly seven months after the circuit court entered its April 7, 2006 order to show cause. Construing § 16-84-207 just as it reads, and giving the words their ordinary and usually accepted meaning in the common language, see Ryan, supra, we hold that the November 3, 2006 summons was not issued immediately as required by the statute. Because our case law clearly states that we strictly construe statutory service requirements, we reject the State’s argument that applying § 16-84-207 strictly in this case would create an absurd result. We reverse the circuit court’s forfeiture judgment against First Arkansas and remand for an order consistent with this opinion.
Reversed and remanded.
The circuit court relied on the statute relating to bail bonds in district court, giving a bail bond company 120 days to apprehend a defendant, see Ark. Code Ann. § 16-84-201(c)(2), rather than the 75 days allowed under § 16-84-207(c)(l)(A). | [
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PER CURIAM.
Appellant, Andre Kelly, appearing pro Se, has filed a motion for rule on clerk to file his record and have his appeal docketed. The clerk refused to accept the record. The record before us does not show strict compliance with Arkansas Rule of Appellate Procedure &emdash; Civil 5(b)(1)(C), as all parties have not had an opportunity to be heard on appellant’s motion to extend the time for filing the transcript.
We have held that Rule 5(b)(1) applies to both civil and criminal cases for the determination of the timeliness of a record on appeal. See Lancaster v. Carter, 372 Ark. 181, 271 S.W.3d 522 (2008) (per curiam). Rule 5(b)(1) provides in pertinent part:
(1) If any party has designated stenographically reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period prescribed by subdivision (a) of this rule or a prior extension order, may extend the time for filing the record only if it makes the following findings:
(C) All parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing;
We have made it clear that there must be strict compliance with the requirements of Rule 5(b) and that we do not view the granting of an extension as a mere formality. See Roy v. State, 367 Ark. 178, 238 S.W.3d 117 (2006) (per curiam); White v. State, 366 Ark. 295, 234 S.W.3d 882 (2006) (per curiam); Rackley v. State, 366 Ark. 232, 234 S.W.3d 314 (2006) (per curiam). We bring to your attention McGahey v. State, 372 Ark. 46, 269 S.W.3d 814 (2007) (per curiam), wherein this court explained that, upon a remand for compliance with Ark. R. App. P. - Civ. 5(b)(1)(C), the circuit court shall determine whether the rule was complied with at the time the original motion for extension of time was filed and granted. This court further stated that the circuit court should not provide the parties with the opportunity to correct any deficiencies, but instead should make the findings required by the rule as if they were being made at the time of the original motion. Should the requirements not have been met at the time of the initial motion for extension and order, the circuit court’s order upon remand should so reflect and be returned to this court. As the record before us does not comply with this rule, we remand this case to the trial court for compliance with Rule 5(b)(1)(C).
Remanded. | [
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Donald L. Corbin, Justice.
This appeal raises an issue of first impression as to the date that interest begins to accrue on a judgment, following a remand and modification by an appellate court. Appellee Woodhaven Homes, Inc., asserts that the chancellor was correct in finding that the interest began to accrue on June 12, 1997, the date that the original judgment was entered. Appellants Ross and Debbie Glover contend that the relevant date is January 19, 2000, the date that the judgment was modified by the Arkansas Court of Appeals. Alternatively, Appellants argue that it is irrelevant when the interest began to accrue because they already tendered a check to Appellee in full accord and satisfaction of the judgment. They argue that the chancellor erred in finding no accord and satisfaction. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1-2(b)(1). We find no error and affirm.
This case originated in a lawsuit filed by Appellee to recover' amounts due under a home-construction contract. The case was tried in the chancery court and resulted in a judgment for Appellee in the amount of $29,435.31, plus attorney’s fees of $2,500.00. Appellants appealed the judgment, and the court of appeals remanded the case with instructions for the chancellor to clarify the manner in which he calculated the damages. See Glover v. Woodhaven Homes, Inc., CA 98-1 (Ark. App. September 30, 1998) (Glover I). Upon remand, the chancellor found that the recalculation showed that Appellee was actually entitled to judgment in the amount of $30,005.75, plus attorney’s fees. On appeal, the court of appeals affirmed the judgment for Appellee, but modified the amount to $24,940.53. See Glover v. Woodhaven Homes, Inc., CA 99-388 (Ark. App. January 19, 2000) (Glover II).
Following the decision in Glover II, the chancery court held a hearing on the issue of when interest on the judgment began accruing. Appellants argued that Glover I reversed and vacated the original judgment, such that it no longer existed. Appellants asserted that interest did not begin accruing until January 19, 2000, the date that the decision in Glover II was delivered. The chancellor rejected Appellants’ arguments and awarded interest on the judgment, as modified on appeal, from the date of the original judgment, June 12, 1997. The chancellor found that Glover I, although styled as a reversal and remand, did not reverse the original judgment, but only remanded the matter for clarification as to how the damages were calculated. The chancellor reasoned that because the first appeal was not a reversal of the merits of the case, the initial judgment against Appellants was never reversed or vacated. Thus, the chancellor found that neither decision from the court of appeals amounted to a reversal of the judgment in favor of Appellee, and that, accordingly, it was proper to award postjudgment interest from the date that the original judgment was entered.
On appeal, Appellants argue that the chancellor erred in finding that interest began accruing from the date of the original judgment. We review chancery cases de novo on the record, but we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Forrest Constr., Inc. v. Milam, 345 Ark. 1, 43 S.W.3d 140 (2001); Harris v. City of Little Rock, 344 Ark. 95, 40 S.W.3d 214 (2001). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. With this standard in mind, we review Appellants’ argument.
The issue presented in this appeal is one of first impression in Arkansas: When does interest begin to accrue on a judgment that has been appealed? We conclude that when the appellate decision does not result in an actual reversal of the judgment, the interest begins accruing from the date of the original judgment. We find support for our conclusion in decisions from other jurisdictions.
In Kneeland v. American Loan & Trust Co., 138 U.S. 509 (1891), the Supreme Court held that in determining whether the original judgment was reversed, courts should look beyond the descriptive language used in an appellate decision and ascertain the actual effect of the decision. There, the Court held that the first appeal, although styled as a reversal, was not a true reversal, because all that remained on remand was for the trial court to strike part of the award. The Court held:
While the former decrees were in terms reversed, and the cases remanded for the entering of new decrees, yet the terms of those new decrees were specifically stated; and, in so far as the separate and distinct matters embraced in the former decrees were ordered to be incorporated into the new, it is to be regarded as pro tanto an affirmance. Equity regards the substance, and not the form. The rights of parties are not to be sacrificed to the mere letter; and whether the language used was reversed, modified, or affirmed in part and reversed in part is immaterial. Equity looks beyond these words of description to see what was in fact ordered to be done.
Id. at 511-12 (emphasis added).
Similarly, the California Supreme Court has held that “[i]t is not the form of the order on the first appeal that controls but the substance of that order.” Snapp v. State Farm Fire & Cas. Co., 388 P.2d 884, 887 (Cal. 1964). Citing to Stockton Theatres, Inc. v. Palermo, 360 P.2d 76 (Cal. 1961), the court held that when a judgment is reversed on appeal, the new award subsequently entered by the trial court can bear interest only from the date that the new judgment is entered. Conversely, when a judgment is modified on appeal, either upward or downward, the new amount draws interest from the date of entry of the original order. In Snapp, the plaintiffs had been granted judgment in the amount of $8,168.25. The appellate court reversed the judgment, with directions to the trial court to enter judgment in the full amount of the insurance policy. In the second appeal, the insurance company argued that the trial court was correct to award interest only from the date of the order entered on remand. The supreme court disagreed, holding that the first appeal was, in law and in fact, a modification of the original judgment, as no issues remained to be determined on remand and no further evidence was necessary. The court thus concluded that interest on the modified amount commenced on the date of the original judgment.
More recently, in Ulibarri v. Gee, 764 P.2d 1326 (N.M. 1988), the Supreme Court of New Mexico cautioned that courts must not disregard the substance of an appellate order in deference to its form. The court explained:
The basic rule is that when this Court reverses and effectively wipes out all or a portion of a judgment, rendering it a nullity, and remands for new findings and the award of damages through the exercise of discretion, then interest accrues from the date of the new judgment; but with mere modification, interest accrues from the date of the original judgment.
Id. at 1326. The court thus rejected a mechanical approach to viewing appellate decisions based solely on the terms of art used therein, in favor of the approach set out by the Supreme Court in Kneeland, 138 U.S. 509.
As stated above, this court has never addressed the issue of computation of postjudgment interest following a reversal by an appellate court. However, in Mothershead v. Douglas, 221 Ark. 756, 255 S.W.2d 953 (1953), this court awarded interest from the date of the original order following modification of the judgment on appeal. That case was the fourth appeal from a suit brought by corporate directors against the corporation to foreclose on a mortgage that the directors had purchased to pay off a debt owed by the corporation. The trial court initially found in favor of the directors and ordered foreclosure. On appeal by the intervening stockholders, this court reversed the judgment of foreclosure. See Mothershead v. Douglas, 215 Ark. 519, 221 S.W.2d 424 (1949). While that appeal was pending, however, one of the directors, Douglas, had disposed of some of the foreclosed property. On remand, the chancery court entered judgment against the director, but only for the amount of the property that he or his agent had sold. This court again reversed and directed the chancellor to enter judgment for the full amount of the foreclosure bid. See Mothershead v. Douglas, 219 Ark. 457, 243 S.W.2d 761 (1951). Thereafter, the chancery court entered judgment as instructed by this court, and the stockholders again appealed. In the final appeal, this court modified the amount of the judgment and ordered that interest be awarded from the date of the original judgment confirming the foreclosure sale. This court held:
The record, when this case was before us in our original opinion, above, 215 Ark. 519, 121 S.W.2d 424, shows that the property here involved was sold to and confirmed in E. P. Douglas and the other above named plaintiffs on October 7, 1948, and therefore the interest (as indicated) must be computed from that date.
221 Ark. at 759, 255 S.W.2d at 954 (emphasis added).
From the foregoing holdings, we conclude that when a judgment is affirmed in a modified amount, the new amount draws interest from the date of the original judgment. When, however, the judgment is reversed on appeal, any new award subsequently entered by the trial court may bear interest only from the date that the new judgment is entered. In determining whether an appellate decision is a reversal or merely a modification, we agree with the Supreme Court that we must look not only to the words used therein, but also to the legal effect of the decision. In other words, we are persuaded that the rights of the parties must not be sacrificed by placing form over substance.
Applying these principles to the present case, we conclude that the chancellor was correct to award postjudgment interest from the date of the original judgment. The first appeal, although styled as a reversal and remand, amounted to nothing more than a remand for clarification. Indeed, the opinion specifically reflects the inability of the appellate court to reach the merits of the case, because it was unable to understand how the chancellor arrived at the amount of damages that he awarded. The opinion did not instruct the chancellor to decide any new issues or hear any additional evidence. This conclusion is supported by the language of the second appeal, wherein the court of appeals explained the effect of its first decision:
The remand was therefore limited to clarification of the method used to determine damages and to correction of any erroneous calculations. Beyond that, it was not intended to permit the chancellor to revisit and revise his findings for any other purpose or with any other motivation.
Glover II, CA 99-388, slip op. at 9 (emphasis added).
In sum, the first appeal did not, in any way, reverse or vacate the original judgment entered in favor of Appellee. Moreover, the second appeal was a mere modification of the amount of the judgment awarded to Appellee. Accordingly, because neither the first nor the second appellate decisions amounted to a reversal of the chancellor’s original judgment in favor of Appellee, it was proper to award postjudgment interest from the date of the original judgment. The chancellor was thus correct to look beyond the precise styling of the appellate decisions to determine their legal effect. In reaching our conclusion, we are mindful that the purpose of awarding postjudgment interest, which is governed by Ark. Code Ann. § 16-65-114(a) (1987), is to compensate judgment creditors for the loss of the use of money adjudged to be due them. Estate of Otto v. Estate of Fair, 316 Ark. 674, 875 S.W.2d 487 (1994). We thus affirm the chancellor’s ruling on this point.
Likewise, we affirm the chancellor’s finding that Appellants failed to prove their claim of accord and satisfaction. Appellants claimed below that following the second appeal, they tendered a cashier’s check in the amount of $25,463.90, drawn on Metropolitan Bank, to Appellee’s attorney in full satisfaction of the modified judgment. Appellants claimed tbat they heard nothing from Appellee on the matter until two weeks later when they learned that the check had been used to purchase a certificate of deposit at Metropolitan Bank. Appellants contended that Appellee’s failure to return the check or otherwise respond to the offer demonstrates its acceptance. The chancellor disagreed, finding that the check was never cashed by Appellee and was not accepted by Appellee as full settlement of Appellants’ obligation.
“Accord and satisfaction” is defined as a settlement in which one party agrees to pay and the other to receive a different consideration or a sum less than the amount to which the latter considers himself entitled. Fort Smith Serv. Fin. Corp. v. Parrish, 302 Ark. 299, 789 S.W.2d 723 (1990) (citing Jewell v. General Air Conditioning Corp., 226 Ark. 304, 289 S.W.2d 881 (1956)). The essential elements to prove accord and satisfaction are: (1) proper subject matter; (2) competent parties; (3) an assent or meeting of the minds; and (4) consideration. Smith v. Leonard, 317 Ark. 182, 876 S.W.2d 266 (1994). The key element is a meeting of the minds, such that there must be an objective indicator that the parties agreed that the payment tendered will discharge the debt. Parrish, 302 Ark. 299, 789 S.W.2d 723. Accord and satisfaction is an affirmative defense that must be proved by the party asserting it. Ark. R. Civ. P. 8(c); Parrish, 302 Ark. 299, 789 S.W.2d 723.
The evidence in this case falls woefully short of demonstrating that there was a meeting of the minds of the parties. To the contrary, the evidence shows only that Appellants tendered a cashier’s check to Appellee’s representative, and that the check was never returned to Appellants. There is no evidence showing that Appellee’s representative cashed the check or otherwise accepted the proceeds as full satisfaction of the judgment. During the hearing below, Appellee’s attorney explained that when he received the check, he contacted the bank and reported that the check was not sufficient to cover the judgment. The bank then instructed him to return the check to the bank, at which time the bank would issue a certificate of deposit and hold the money until a decision could be made by the chancery court. The chancellor evidently found this explanation credible, and we defer to the chancellor’s superior position to observe the parties before him. See Dinkins v. Arkansas Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). In short, it was Appellants’ burden to prove that the parties agreed that the amount tendered satisfied the judgment in full. Because they failed to present such proof, we cannot say that the chancellor’s finding on this issue was clearly erroneous.
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Ray Thornton, Justice.
Appellant, Stephen John Colston, entered a conditional plea of guilty to first-degree battery, in violation of Ark. Code Ann. § 5-13-201 (a) (3) (Repl. 1997), pursuant to Ark. R. Crim. P. 24.3(b) (2000). The battery charge, a class A felony, was enhanced by Ark. Code Ann. § 5-74-108 (Repl. 1997), engaging in violent criminal activity. The trial court accepted appellant’s guilty plea and sentenced appellant to eight years in the Arkansas Department of Correction. Before appellant entered his conditional plea, he filed a motion to suppress. The trial court denied appellant’s motion, but allowed him to appeal the adverse determination of the suppression issue. For his sole allegation of error, appellant argues that the trial court erred in denying his motion to suppress his statement based upon an alleged illegal arrest. We affirm the trial court.
I. Facts
On April 10, 2000, Benton High School principal, John Dedman, reported to the Benton Police Department that a student, K.F., had been stabbed in the abdomen and had been transported to Saline Memorial Hospital for treatment. Witnesses stated that K.F. was getting into a vehicle when a white female asked her if she was “Nap.” When K.F. responded in the affirmative, the female began hitting her. H.F., K.F.’s sister, attempted to intervene, and the woman stabbed K.F. with a knife. The young woman swung the knife at H.F., but did not make contact. The woman then got into a nearby van, driven by a white male, and left the scene.
Witnesses at the scene described the woman as an overweight white female with red hair, and the driver as a white male with blond hair who wore a white baseball cap. They also described the van as gray, bearing an Arkansas license place with the number, 090-BTK. A police check of the license plate showed the vehicle belonging to an individual named Colston who lived at 6 Crest Lane in North Litde Rock. Law enforcement agencies in Pulaski County were notified of this incident. They attempted to locate the vehicle at that address, but were unsuccessful.
Jim Andrews, a lieutenant with the Saline County Sheriffs Department and supervisor of the Criminal Investigation Division, testified that, on the next day, April 11, 2000, he assisted in the investigating the stabbing incident at Benton High School. After speaking with several witnesses and obtaining the license plate number of the van, he and Sergeant Carty and two investigators headed toward the residence.
On their way to the residence, Detective Mike Frost of the Saline County Sheriffs Department radioed that he was going to Cabot on another related case, and Lieutenant Andrews asked Detective Frost if he would go to the residence because he was so close to the location. Detective Frost was given the descriptions of the two individuals involved at the Benton High School stabbing.
Detective Frost testified that when he got the call from his supervisor, Lieutenant Andrews, he went to the address in North Litde Rock under his instructions. He further testified that when he got to North Little Rock, he contacted the Pulaski County Sheriffs Office to determine where the residence was located. When he arrived on the scene, the van was not there, but he saw the name, “Colston,” on a wooden name board on the front porch. Detective Frost then advised Lieutenant Andrews of these facts, and Lieutenant Andrews directed the detective to make contact with anyone inside the house.
Detective Frost further testified that when a female who matched the description answered the door, he placed handcuffs on her, placed her inside his vehicle, and took her into custody. She did not, at any time, contest the validity of her detention, but identified herself as Latrina Garris, and told the detective that appellant, Stephen Colston, was asleep inside the residence. Detective Frost contacted the Pulaski County Sheriffs Office and advised them that he needed a deputy at the location to make contact with the subject in the house. The Pulaski County deputy arrived ten minutes after Detective Frost made the call.
When the two officers approached the residence, appellant was at the door. Detective Frost identified himself and told appellant that he was investigating a stabbing incident. He also told appellant that officers from Benton Police Department were en route. Detective Frost then went out to the police car where Garris was. He mirandized her and asked her about the location of the van. She responded that appellant’s mother had it at work.
At that time, a gray van pulled into the driveway driven by a woman who identified herself as Gail Colston, appellant’s mother. Detective Frost asked her if she had driven the van to work on Monday, April 10, and she stated that her daughter, Elizabeth Colston, had driven her to work at 8:30 a.m. on Monday morning and that her daughter had left the van for appellant to drive that day. Detective Frost then testified that he asked Elizabeth Colston some questions. He stated that she said that appellant had spoken with his cousin, Alex, the previous evening for “a long, long time.” She did not hear the conversation.
Detective Frost testified that, after Gail Colston arrived, Lieutenant Andrews and Detective Mike Montgomery of the Benton Police Department and Detective Marvin Hodges of the Saline County Sheriff Department arrived. After Detective Frost advised them of the situation, Detective Montgomery went to the vehicle to see Garris. Detective Frost told the officer that she had been mirandized. According to Detective Frost’s testimony, Detective Montgomery asked Garris if she had done the stabbing, and she responded, “I did it.” Detective Frost took five photographs of the van and turned the film over to Detective Montgomery.
Detective Frost also testified that Lieutenant Andrews obtained a consent to search from appellant’s mother. Detective Frost found a twenty-dollar bill and four ten-dollar bills lying beside appellant’s bed. He also found several notes written by Garris to appellant. These items were handed over to Lieutenant Andrews. Detective Frost further testified that he and Detective Montgomery transported Garris while Lieutenant Andrews and Detective Hodges transported appellant to the Benton Police Department.
At the Benton Police Department, Garris confessed that she had stabbed K.F., but had not meant to do so. She stated that she only meant to “beat her ass” because she had “narcked” on some people in court several weeks before. Garris stated that she committed the act for Alex Barnard, appellant’s cousin, who paid her $100. Garris said that she had never met K.F. before and knew her only as “Nap.” She stated that she pulled the knife after K.F.’s sister jumped on her. She further stated that, after the incident, she left with appellant. She stated that she was paid $100 on that Monday night.
While at the Benton Police Department, appellant stated that he wanted to make a statement. He said that his cousin, Alex Barnard, called him on Sunday night. Appellant spoke briefly with Barnard and handed the telephone to Garris. Appellant stated that he then fell asleep. He also said that he drove to the school and waited. He saw Garris confront K.F. When he started honking the horn, Garris got in the van, and the two drove back to North Little Rock. Appellant went to work that night, and Garris stayed home.
On cross-examination, Detective Frost admitted that when he was in North Little Rock, he was outside of his jurisdiction. With regard to appellant, Detective Frost stated:
As my report reflects, [as] the Pulaski County deputy arrived, a white male came to the door and I detained him for investigative purposes. He was not free to leave because he fit the general description that he matched. We did not arrest him per se but he was not free to leave the house. I detained him for “investigative purposes” the minute he came to the door. The Pulaski County deputy was with me and we were both walking up on the porch when we saw him. The Pulaski County deputy did not do anything but he was there with me. The van arrived approximately fifteen minutes later. I turned the notes I found over to the Benton Police Department. I was not present when Detective Montgomery advised Mr. Colston of [his] Miranda rights.
Detective Mike Montgomery of the Benton Police Department testified that appellant’s mother called an attorney, and the attorney spoke to appellant. After Detective Montgomery read appellant his Miranda rights, appellant stated that he did not want to make a statement at that point. Detective Montgomery testified that he arrested appellant on the basis that he matched the description of the driver of the vehicle in the Benton High School stabbing.
Detective Montgomery testified that he transported appellant to the Benton Police Department. He stated:
Stephen’s parents wanted to speak with me with Stephen there so the four of us went in an interview room. Stephen’s father wanted to know what Stephen could do to help. Just in general conversation, I said I’m not going to talk to him but his cooperation is something that is always taken into consideration. I never attempted to ask Stephen any questions. This took place a half an hour or less. The conversations with his parents concerned the amount of bond, if he were allowed to make bond, what steps they could take, etc. I never told his parents that if he cooperated he would get some specific consideration. There were no promises or deals or guarantees made. As I escorted Stephen to the holding cell, and his parents were going out into the lobby, Stephen asked me, as I opened the door to his cell, if he could still talk to me. There was no intention on my part of questioning him any more since he had already indicated that he did not want to do that. He told me that he wanted to give me his side of the story so I told him I would listen. We went back to the interview room and I went over another Miranda rights form, the same way I went over the last one, having him initial each right [on the form].
Detective Montgomery then recorded the statement on an audio tape and a video tape. Detective Montgomery admitted that there is no mention of an initial request for counsel in the affidavit.
Detective Greg Little of the Benton Police Department also testified at the suppression hearing. On cross-examination, Detective Little testified that he wrote the affidavit for appellant’s arrest. He stated, “There is nothing in the affidavit that he declined to make a statement by invoking his right to counsel.”
At the suppression hearing, appellant testified on his own behalf. He testified that he remembered being readvised of his Miranda rights at the jail at approximately 5:00 p.m. that evening by Detective Montgomery. Appellant stated, “[Detective Montgomery] told me that it would help me out on my charge if I would make a statement. He did not tell me how it would help out. He said he could not help me if he did not hear my side of the story.” On cross-examination, appellant testified, “I would agree that if the statement I made was suppressed, it would help my case.” Appellant’s mother, Gail Colston, testified on her son’s behalf at the suppression hearing. Her testimony supports that of the appellant.
After hearing arguments from appellant’s counsel and the State, the trial court denied appellant’s motion to suppress from the bench. Appellant and the State agreed, pursuant to Ark. R. Crim. P. 24.3, to a conditional plea of guilty. In its order, the trial court states that appellant “wifi also be allowed to appeal the adverse determination of the suppression issue to the Arkansas Supreme Court and/or Court of Appeals.” On appeal, appellant argues that his statement should have been suppressed as the fruit of the poisonous tree of an illegal arrest by officers outside their jurisdiction.
II. Rule 24.3(b)
This case was certified to us by the court of appeals on the grounds of Ark. R. Crim. P. 24.3(b). Arkansas Rule of Criminal Procedure 24.3(b) provides:
(b) With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.
Id. (emphasis added).
As a general rule, one is not allowed to appeal from a conviction resulting from a guilty plea, aside from jurisdictional defects. Ark. R. App. P. — Crim. 1(a). However, “Rule 24.3(b) presents an exception to the rule hut only for the purpose of determining on appeal whether an appellant should be allowed to withdraw her plea if it is concluded that evidence should have been, but was not suppressed.” Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997). We have strictly construed the permissible scope of an appeal under Rule 24.3(b). In Wofford, appellant entered a conditional guilty plea under Rule 24.3(b), and we declined to address an upward departure from sentencing guidelines and an alleged violation concerning cameras in the courtroom because there points did not concern the “suppression of evidence.” Id. See also Jenkins v. State, 301 Ark. 586, 786 S.W.2d 566 (1990) (declining to reach the merits of a speedy-trial argument when the appellant entered a Rule 24.3(b) conditional plea of nolo contendere on the charge).
In Bisbee v. State, 341 Ark. 508, 17 S.W.3d 477 (2000), appellant was charged with one count of kidnaping, three counts of rape, and one count of residential burglary. Appellant spoke with law enforcement officials about the abduction during the course of the investigation. Appellant filed a motion to suppress his statement, arguing that the police officers promised him a Coke and a cigarette in exchange for his statements. The trial court denied the motion, finding that appellant had voluntarily waived his rights. Pursuant to Ark. R. Crim. P. 24.3(b), the trial court accepted appellant’s conditional guilty plea, which was conditioned upon the State allowing him to appeal the trial court’s adverse ruling on his pretrial motion to suppress. We held that the trial court’s findings were not erroneous. Id.
The facts presented in this appeal are similar to those in Bisbee, supra. In Bisbee, appellant raised the question of voluntariness of his statement on appeal after his conditional plea was entered. In the present case, appellant raises the issues of extraterritorial jurisdiction and probable cause to effectuate his arrest. Nevertheless, appellant’s argument concerns the suppression of evidence as the fruit of an alleged illegal arrest. See Wofford, supra. Under Rule 24.3(b), appellant’s guilty plea was conditioned upon the State allowing him to appeal “any adverse determination of a pretrial motion to suppress.” We interpret the language of this rule to include the validity of an arrest after which a statement was made. For these reasons, we will reach the merits of appellant’s point on appeal.
III. Legality of the arrest
For his sole point on appeal, appellant argues that the trial court erred in denying his motion to suppress his statement because the officers lacked probable cause to make an extraterritorial arrest. Specifically, appellant argues that his statement made after the arrest should have been suppressed under the fruit of the poisonous tree doctrine.
As a general rule, there are four instances where officers may arrest outside their territorial jurisdiction: (1) when the officer is in fresh pursuit, under Ark. Code Ann. § 16-81-301 (1987); (2) when the officer has a warrant for arrest, as provided by Ark. Code Ann. § 16-81-105 (1987); (3) when a local law enforcement agency has a written policy regulating officers acting outside its territorial jurisdiction and when said officer is requested to come into the foreign jurisdiction, as stated in Ark. Code Ann. § 16-81-106(c)(3)-(4) (Supp. 1995); and (4) when a sheriff in a contiguous county requests an officer to come into his county to investigate and make arrests for violations of drug laws, pursuant to Ark. Code Ann. § 5-64-705 (Repl. 1993). Perry v. State, 303 Ark. 100, 794 S.W.2d 141 (1990). The traditional concept of territorial jurisdiction for peace officers is a sound one since a local community is best served by the requirement that local officers familiar with local neighborhoods make arrests in the community. Perry, supra.
At the outset, we note that the prosecutor below conceded that the Saline County officers arrested appellant outside of their territorial jurisdiction, and that none of the statutory grounds for making an extraterritorial arrest appear to apply to the facts of the present case.
Appellant cites Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997) in support of his argument that appellant’s arrest was illegal. In Henderson, appellant moved to suppress his statement to Pulaski County deputy sheriffs as the fruit of the poisonous tree because his arrest was made by Pulaski County officers while in' Lonoke County, which was outside territorial jurisdiction. The State claimed that, because a federal agent who was deputized across the state participated in the arrest, the arrest was valid. We disagreed, holding that there was no federal offense involved, that the federal agent was not involved in the operation, and that the federal agent was not given explicit permission by his superior to effectuate an arrest. Id.
Henderson, supra, is distinguishable from the present case because no Lonoke County officers were present at the time the Pulaski County officers arrested Henderson. Pulaski County officers, acting in concert with a federal agent, erroneously made the arrest in Lonoke County without the presence of Lonoke County law enforcement because they believed that the presence of the federal agent would legitimize their warrantless arrest. Id. Here, Pulaski County officers were on the scene, aiding Saline County officers in their investigation and participating in appellant’s arrest.
The facts in this case are more similar to the circumstances in Logan v. State, 264 Ark. 920, 576 S.W.2d 203 (1979), where a Crittenden County deputy sheriff sought to arrest appellant while he was in St. Francis County. The deputy sheriffs from Crittenden County sought assistance from a St. Francis County deputy sheriff. Id. According to Logan, the presence of an officer with full authority to make an arrest legitimizes an arrest. The presence and acquiescence of a duly authorized officer is the key to determining whether an arrest is authorized. Id. Justice George Rose Smith, writing for the court, stated, “We need not discuss these contentions, because it is a fair inference from Davis’s testimony that Sam Hughes, the St. Francis County deputy, participated in the arrest.” Id. The court further stated, “Even though it was Officer Davis [from Crittenden County] who actually told Logan that he was under arrest, we think it clear that Officer Hughes [from St. Francis County] was also present in his capacity as a deputy sheriff and participated in making the arrest.” Id.
Like the circumstances in Logan, supra, Pulaski County officers were present and acted in concert with the Saline County officers. Here, the knowledge of appellant’s commission of a felony had been reported to the Pulaski County Sheriffs Office, and Pulaski County officers were asked to participate in the arrest. This request for assistance and participation was made three times. First, the Saline County officers reported the offense to Pulaski County officers, who then participated in the efforts to apprehend appellant by going to the address on the day the felony was committed. According to Detective Little’s affidavit alleging probable cause, agencies in Pulaski County were notified of the Benton High School incident and attempted to locate the vehicle at that address, but were unsuccessful. Second, Detective Frost called the Pulaski County Sheriffs Office the next day on his way to Cabot for assistance in locating the residence. Third, Detective Frost contacted the Pulaski County Sheriffs Office before the arrest, and advised them that he needed a deputy at the location before making contact with the subject in the house. The Pulaski County deputy arrived ten minutes after Detective Frost made the call, and the Pulaski County deputy was on the scene before appellant was apprehended and arrested. The Pulaski County deputy and Detective Frost went to the door of the house and apprehended appellant, who matched the description of the man who drove the get-away van at Benton High School. For these reasons, we follow Logan, supra, as well-established precedent that an arrest is valid when the arresting officer is accompanied by a duly qualified officer of the jurisdiction where the arrest occurs and who thereby participates in making the arrest.
In our cases involving the legality of arrests, it is well settled that all presumptions are favorable to the trial court’s ruling on the legality of the arrest and the burden of demonstrating error rests on appellant. Efurd v. State, 334 Ark. 596, 976 S.W.2d 941 (1998) (citing Humphrey v. State, 327 Ark. 753, 940 S.W.2d 753 (1997)). See also Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989).
We hold that the trial court properly denied appellant’s motion to suppress the statement. Accordingly, we affirm.
Affirmed.
Glaze, J., concurs.
Brown, Imber, and Hannah, JJ., dissent. | [
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Per Curiam.
The appellants, Terrance and Tamagum Antonio Robinson, advise this court that the original record and exhibits cannot be located. They move this court to permit a copy of the trial transcript to be substituted for the original.
Because this is a criminal case, we direct the Supreme Court Clerk to accept the substituted copy of the trial transcript as of the time when all of the attorneys of record certify to the Clerk, by affidavit, that the copy of the trial transcript is true, accurate, and complete. Cf. Mitchell v. State, 345 Ark. 359, 45 S.W.3d 846 (2001) (per curiam). We further direct that all attorneys of record reconstruct the record, including trial exhibits if necessary in accordance with our Appellate Rules, and certify in the same affidavit that the record is full, accurate, and complete. See Ark. R. App. P. — Civ. 6(d); Ark. R. App. P. — Crim. 4(a). Should all of the attorneys of record not make this certification by affidavit, the substituted record will not be accepted. | [
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Ray Thornton, Justice.
This is an appeal from a trial court’s denial of a Rule 37 petition. Appellant, Frank
Williams, shot and killed Clyde Spence at his home in Lafayette County. Appellant was charged with breaking or entering, felon in possession of a firearm, theft of property, and capital murder. Fie was sentenced to death by lethal injection on the capital-murder charge. We affirmed appellant’s conviction on his direct appeal in Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995), cert. denied, 516 U.S. 1030 (1995). On February 20, 1996, appellant filed a petition for postconviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. On March 30, 1999, a hearing was held on appellant’s petition, and on July 23, 1999, the trial court denied the Rule 37 petition. From that order, as well as a supplemental order filed September 25, 2000, appellant brings his appeal. He raises three allegations of error. We find no reversible error and affirm the trial court.
In appellant’s first point on appeal, he argues that the trial court’s order denying his petition for postconviction relief did not comply with the Rule 37.3(c) of the Arkansas Rules of Criminal Procedure. Specifically, appellant contends that the trial court’s July 23, 1999, order did not contain the requisite findings of facts and conclusions of law. Appellant argues that the trial court’s order contained incomplete or conclusory findings in violation of Rule 37. Finally, appellant contends that because the order is invalid we should reverse and remand this case.
The order that appellant challenges is the trial court’s July 23, 1999, order. In that order, the following findings were made:
On the basis of the pleadings and briefs filed in the case, the record of the trial, and the evidence introduced at the hearing on this petition, the court hereby denies postconviction relief.
The petitioner, in his original motion for postconviction relief, alleged several factors for the court’s consideration. In his brief subsequent to the hearing, counsel does not choose to address these factors individually, but considers all points alleged in his original petition to constitute ineffective assistance of counsel.
In denying petitioner’s motion for postconviction relief, the court finds that to prevail as an instance of ineffective assistance of counsel, the petitioner must establish that trial counsel’s conduct was outside the range of reasonable professional assistance and that there is a reasonable probability that, but for counsel’s errors, the outcome' would have been different. Strickland v. Washington, 466 U.S. 668 (1984). The petitioner failed to establish a reasonable probability that, but for counsel’s errors, the outcome would have been different. Therefore, the petition for Rule 37 relief must be denied.
We agree with appellant’s contention that the original order was conclusory and did not meet the requirements of Rule 37. However, on May 25, 2000, the State filed a motion in this court asking us to remand the case to allow the trial court to enter written findings of fact pursuant to Rule 37.5(i) of the Arkansas Rules of Criminal Procedure. That rule states:
If a hearing on the petition is held, the circuit court shall, within sixty (60) days of the conclusion of the hearing, make specific written findings of fact with respect to each factual issue raised by the petition and specific written conclusions of law with respect to each legal issue raised by the petition. If no hearing on the petition is held, the circuit court shall, within one hundred twenty (120) days after the filing of the petition, make specific written findings of fact with respect to each factual issue raised by the petition and specific written conclusions of law with respect to each legal issue raised by the petition. The time within which the circuit court shall make specific written findings of fact and conclusions of law shall be extended by thirty (30) days if the circuit court requests or permits post-hearing briefs.
Id. (emphasis added).
On June 15, 2000, we granted the State’s motion and remanded this case back to the circuit court. On September 25, 2000, the trial court entered a supplemental order denying appellant’s petition. In that order, the trial court made specific factual findings and conclusions of law on each issue raised by appellant in his petition for postconviction relief. We have carefully considered those specific findings of fact and conclusions of law, and find no reversible error. We also note that appellant has not challenged those specific findings of fact and conclusions of law. We hold that the trial court’s supplemental order complies with our rules of criminal procedure, and contains no reversible error as to the first point on appeal. We further conclude that appellant’s allegation of error based upon the defective original order is now moot.
In appellant’s second point on appeal, he argues that the trial court should have granted his petition for postconviction relief because his attorney at trial was ineffective. Specifically, appellant argues that his trial attorney was ineffective because he failed to call various witnesses such as his mother or his sister to testify during the sentencing phase of the trial. Before addressing the merits of appellant’s argument, we note that appellant has failed to proffer the substance of either witnesses’ testimony at any stage of the postconviction proceeding. Thus, it is impossible for either the trial court or this court on review to determine whether appellant’s mother’s testimony or his sister’s testimony would have changed the outcome of the trial, thereby rendering trial counsel’s assistance ineffective. We have held that allegations of ineffective assistance without substantiation do not justify postconviction relief. Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995). Specifically, we have explained that we will not grant postconviction relief for ineffective assistance of counsel in a case where a petitioner fails to show what the omitted testimony was and how it would have changed the outcome. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). Additionally, we have noted that to prove ineffectiveness due to failure to secure testimony, our cases require a showing of what would have been presented in the testimony as well as how the outcome would have been changed by it. Johnson, supra. Because appellant has failed to proffer the testimony of his mother or his sister, we cannot review the merits of this issue on appeal. Accordingly, the trial court is affirmed.
In appellant’s final point on appeal, he argues that the Arkansas Death Penalty Statute is unconstitutional. He challenges its constitutionality on several grounds. Specifically, he argues that the statute: (1) has overlapping offenses; (2) limits the jury’s consideration of mitigating evidence during the sentencing phase of the trial; and (3) requires the imposition'' of the death penalty under certain circumstances.
Before addressing appellant’s contentions, we note that appellant was required to raise any constitutional claims in his direct appeal. We have held that even constitutional issues must be raised in the trial court and on direct appeal, rather than in Rule 37 proceedings. Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999). We further note that each constitutional challenge raised by appellant in this case was reviewed and rejected in our recent case, Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001).
In appellant’s first constitutional argument, he contends that felony capital murder and premeditated and deliberated murder are identical to and overlap with first-degree felony murder and first-degree murder. We have repeatedly rejected this contention. Davis, supra; Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994); Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980). In Davis, supra, we considered this “overlapping statute” argument and explained:
In Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997), we stated simply that “[w]e have decided this issue adversely to Lee’s position on many occasions, and adhere to these previous holdings.” Id. Similarly, in Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), we stated that we have discounted this argument on numerous occasions. See Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994). Similarly, on this occasion, we adhere to our previous decisions, and we reject this argument. Therefore, any inference that trial counsel was ineffective for failing to raise this point in the direct appeal is meritless.
Davis, supra. Because appellant’s argument in the case now before us is identical to that raised in Davis, supra, Lee, supra, and Nooner, supra, and because the statutory language in question has not changed since our disposition of those cases, we once again reject the argument that the death-penalty statute is unconstitutional, and reject any inference that the failure to raise this issue on direct appeal constituted ineffective assistance of counsel.
Next, appellant argues that the sentencing instructions and the jury verdict forms did not inform the jury that each juror could consider mitigating factors at all times, in violation of Mills v. Maryland, 486 U.S. 367 (1988) and McKoy v. North Carolina, 494 U.S. 433 (1990). Appellant has failed to abstract the trial court’s instructions during the sentencing phase of his trial or the verdict forms completed by the jury. We have held that the failure to abstract a critical document precludes us from considering issues concerning it on appeal. Davis, supra. Because appellant has failed to abstract these documents, and because the record on appeal is confined to that which is abstracted, we cannot consider appellant’s argument on appeal.
Finally, appellant contends that the sentencing scheme is unconstitutional because the word, “shall,” in Ark. Code Ann. § 5-4-603 requires the jury to impose the death penalty on certain findings. We have previously held that Ark. Code Ann. § 5-4-603 does not result in a mandatory death sentence. Davis, supra; see also; Williams v State, 338 Ark. 97, 991 S.W.2d 565 (1999); Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986). Once again, because appellant has not provided us with any reason to deviate from precedent, we reject the allegation that the Arkansas Death Penalty Statute is unconstitutional. We further reject any inference that counsel’s failure to raise this issue on direct appeal constituted ineffective assistance of counsel. Finding no reversible error, we affirm the trial court.
Affirmed.
GLAZE, J., concurs. | [
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W.H. “Dub” Arnold, Chief Justice.
Appellant, William R. Vowell, individually and as president and officer of Finally Communities, Inc., Finally Computer Corporation, Inc., and Finally Properties, Inc., brings the instant appeal challenging an order of the Van Burén County Chancery Court: (1) granting an injunction in favor of appellee, Fairfield Bay Community Club, Inc., and restraining Vowell from taking any action directly or indirectly interfering with the Club’s contractual relationship with its members; (2) requiring appellant to pay the Club $807,066.00 in damages sustained by the Club for lost or expected revenues; (3) “reforming” forty-nine deeds to lots formerly owned by Club members, sold to Vowell, and then unilaterally deeded back to the Club by Vowell; and (4) requiring Vowell to accept the deeds and to comply with the terms of any associated covenants and restrictions. Our jurisdiction is authorized pursuant to Ark. R. Sup. Ct. 1-2(a)(1) (2001). Although we affirm the trial court on the merits, we reverse and remand for further proceedings on the issue of damages.
Background
The Club is a nonprofit organization located in Fairfield Bay, Van Burén County, Arkansas, that is responsible for administering amenities and facilities for resident and nonresident property owners of Fairfield Bay, including a golf course, tennis courts, a marina, and water, sewer, and garbage services. Pursuant to a Declaration of Covenants and Restrictions accompanying the registered deeds of all property owners in Fairfield Bay, all lot owners must join the Club. The agreement also requires all nonresident property owners to pay dues of $18.00 per month to the Club in exchange for the Club’s services. However, charter members are required to pay dues of only $25.00 per year.
Appellant Vowell was familiar with the Club’s contractual arrangements, covenants, and restrictions because of his prior history with the Club. From 1966 to 1973, he served as the Club’s senior vice-president of sales. His responsibilities included managing appellee’s day-to-day operations. Significantly, Vowell also assisted in drafting the Club’s original restrictions and covenants, the subject of the instant litigation.
In 1997, as the president and owner of Finally Communities, Inc., and Finally Properties, Inc., Vowell began soliciting nonresident Club members to consider participation in Canyon Ridge, a competing vacation resort located near Fairfield Bay. Vowell. admits that his marketing strategy included purchasing nonresident-property-owners’ lots for $1.00 in exchange for their purchase of a $2,595.00 Canyon Ridge membership. Under this scheme, Vowell sold 270 memberships in Canyon Ridge and transferred forty-nine deeds to Finally Communities, Inc., and the remaining 221 deeds to Resort Network, Inc., an offshore corporation located in the Bahamas. Then, appellant unilaterally transferred forty-nine deeds back to the Club, without the Club’s consent.
Subsequently, the Club filed an action in chancery court alleging that Vowell tortiously interfered with its business expectancy by terminating its contractual relationships with nonresident property owners and by failing to make monthly dues payments after accepting former members’ deeds. Further, appellee alleged that it would suffer irreparable harm if Vowell’s actions remained undeterred. As a result, the Club sought injunctive relief and reformation of the forty-nine deeds transferred to the Club without its consent.
Initially, appellee received temporary injunctive relief from the chancery court, which prohibited appellant’s dissemination of false information about the Club and enjoined the redemption of Fair-field Bay lots to appellant as part of Canyon Ridge’s marketing plan. Apparently, following this order, Vowell conveyed the lots directly to Resort Network, Inc., the offshore corporation, effectively frustrating the Club’s collection efforts. Ultimately, the matter proceeded to trial. On March 8, 2000, the chancery court entered an order “reforming” the forty-nine deeds transferred to the Club, awarding appellee $807,066.00 in damages, and enjoining Vowell from taking any further action to interfere with the Club’s contractual relationships with its members. From that order, comes the instant appeal.
Vowell raises three points on appeal. First, he claims that the chancery court lacked subject-matter jurisdiction because the Club had an adequate remedy at law. Second, he contends that the court’s finding of tortious interference with business expectancy was clearly erroneous. Third, appellant argues that the court erroneously calculated the damage award. After considering the parties’ arguments and authorities, we affirm, in part, and reverse and remand, in part, for a recalculation of damages.
I. Jurisdiction
Appellant’s first issue on appeal raises a jurisdictional challenge. Specifically, Vowell claims that the Club had an adequate remedy at law, which precludes equity jurisdiction. In response, appellee suggests that Vowell waived any objection to subject-matter jurisdiction because he admitted that jurisdiction was appropriate in his answer to its complaint. This threshold argument is meridess. Subject-matter jurisdiction is a defense that cannot be waived by the parties at any time nor can it be conferred by the parties’ consent. See Moore v. Richardson, 332 Ark. 255, 964 S.W.2d 377 (1998). Although we discard appellee’s waiver argument, we agree that equity jurisdiction was appropriate in this case.
The Club sought relief for damages arising from Vowell’s unilateral transfer of forty-nine deeds that were neither properly delivered to nor accepted by the Club. As a result, appellee sought both “reformation” of the instruments and associated money damages caused by the unilateral conveyances that prevented the Club from collecting expected monthly dues payments. Accordingly, appellee sought equitable relief based upon a tort theory of “tortious interference with business expectancy.” Moreover, although money damages were admittedly sought, the core of appellee’s complaint centered upon the predicament caused by its forced acceptance of the forty-nine deeds and consequent inability to collect expected dues on those properties as well as 221 other lots transferred to an ofishore corporation.
We acknowledge that the Club mischaracterized the nature of equitable relief sought as “reformation,” rather than cancellation. Reformation requires either mutual mistake or unilateral mistake accompanied by fraud. See Robertson Enters., Inc. v. Miller Land & Lumber Co., 287 Ark. 422, 700 S.W.2d 57 (1985). Despite the imprecision, the nature of appellee’s claim and the subsequent relief granted were equitable. The trial court’s purported “reformation” was tantamount to cancellation of the deed transfers. Further, this relief was accompanied by an injunction prohibiting further interference with the Club’s business expectancies arising from its covenants and restrictions. In sum, we cannot say that the Club had an adequate remedy at law in view of appellant’s unorthodox transfer of the first forty-nine deeds and subsequent transfer of 221 deeds to an offshore corporation in a thinly veiled attempt to thwart the chancery court’s temporary restraining order.
In any event, the clean-up doctrine afforded appellee jurisdiction in the chancery court. Pursuant to that doctrine, once equity properly acquires jurisdiction over a matter, it acquires jurisdiction for all purposes. In other words, provided a proper jurisdictional basis existed initially, an allegation of one equitable claim may bring an entire case in to the chancery court. See Towell v. Shepherd, 286 Ark. 143, 689 S.W.2d 564 (1985); see also Howard W Brill, Arkansas Law of Damages § 2-3, at 16 (3d ed. 1996). In light of the foregoing, we conclude that the chancery court had proper subject-matter jurisdiction to hear the entire case.
II. Merits
We next consider appellant’s claim that the trial court was clearly erroneous in finding that Vowell tortiously interfered with the Club’s business expectancy. Ark. R. Civ. P. 52(a) (2001) provides that a chancery court’s factual determinations shall not be set aside unless clearly erroneous. In other words, we should affirm the chancery • court’s finding unless its determination was clearly against the preponderance of the evidence. Id. Of course, a chancellor’s conclusions of law are not entitled to the same deference. If the chancellor erroneously applies the law and the appellant suffered prejudice, the erroneous ruling should be reversed. City of Lowell v. M & N Mobile Home Park, Inc., 323 Ark. 332, 916 S.W.2d 95 (1996). Here, we hold that the chancery court’s decision was not clearly erroneous, and we affirm on the merits.
To establish a claim of tortious interference, appellee must prove: (1) the existence of a valid contractual relationship or a business expectancy; (2) knowledge of the relationship or expectancy on the part of the interfering party; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. Dodson v. Allstate Ins. Co., 345 Ark. 430, 444, 47 S.W.3d 866, 875 (2001) (citing Brown v. Tucker, 330 Ark. 435, 954 S.W.2d 262 (1997); Cross v. Arkansas Livestock & Poultry Comm’n, 328 Ark. 255, 943 S.W.2d 230 (1997); United Built Homes, Inc. v. Sampson, 310 Ark. 47, 832 S.W.2d 502 (1992)).
We also require that the defendant’s conduct be at least “improper.” We have considered the factors outlined in the Restatement (Second) of Torts § 767 (1979), for guidance about what is improper. Dodson, 345 Ark. at 445, 47 S.W.3d at 875 (citing Mason v. Wal-Mart Stores, Inc., 333 Ark. 3, 969 S.W.2d 160 (1998)). In particular, section 767 states that in determining whether an actor’s conduct is improper or not, we should consider: (1) the nature of the actor’s conduct; (2) the actor’s motive; (3) the interests of the other with which the actor’s conduct interferes; (4) the interests sought to be advanced by the actor; (5) the social interests in protecting the freedom of action of the actor and the contractual interests of the other; (6) the proximity or remoteness of the actor’s conduct to the interference; and (7) the relations between the parties. Dodson, 345 Ark. at 445 n.2, 47 S.W.3d at 875-76 n.2 (citing Mason, 333 Ark. at 14, 969 S.W.2d at 160).
A review of the facts in the instant case demonstrates that appellee met its burden of proof. First, the Club had a valid business expectancy to some stream of dues to be paid with respect to the 270 lots purchased by appellee. Second, given Vowell’s past relationship with the Club and intimate knowledge of the restrictions and covenants governing both the Club and property owners, it is evident that he had knowledge of the Club’s expectancies. Third, Vowell’s actions were admittedly intentional and designed as part of a marketing strategy to entice nonresident property owners to terminate their relationship with Fairfield Bay and join Vowell’s competing resort, Canyon Ridge.
Fourth, Vowell’s conduct ultimately induced 270 Club members to terminate their relationship with the Club and Fairfield Bay. When these deeds were then transferred back to the Club or to an execution-proof entity, the Club’s expectancy to those dues was also terminated. Therefore, the Club suffered damages as a result of the terminated relationships and business expectancies. Pursuant to the Restatement guidelines, we may also describe Vowell’s conduct, motives, and interests, as “improper.” Accordingly, we conclude that the chancellor’s decision was not clearly erroneous.
III. Damages
The final point before us concerns the validity of the chancellor’s damage award. Appellant contends that the $807,066.00 award was clearly erroneous. We agree. The chancellor’s computations reflect that the Club was awarded $11,466.00 for the forty-nine lots Vowell unilaterally deeded to the Club. In reaching this figure, the court assumed that each lot was assessed an $18.00 monthly fee that remained unpaid for a period of thirteen months, representing the time elapsed from the date of transfer to the hearing date. Although recovery will not be denied merely because the amount of damages is hard to determine, damages must not be left to speculation and conjecture. Dawson v. Temps Plus, Inc., 337 Ark. 247, 258, 987 S.W.2d 722, 728-29 (1999) (citing Pennington v. Harvest Foods, Inc., 326 Ark.704, 934 S.W.2d 485 (1996); Morton v. Park View Apartments, 315 Ark. 400, 868 S.W.2d 448 (1993)).
Here, the trial court resorted to speculation and conjecture because it assumed that all forty-nine lots were assessed the $18.00 per month fee. However, the evidence demonstrated that some property owners held charter memberships, levied at a reduced rate of $25.00 per year. The damage award fails to distinguish between these types of membership dues and to adjust the award accordingly. For this reason, we hold that the award was clearly erroneous.
For the 221 lots deeded to the offshore corporation, the Club was awarded damages totaling $795,600.00. Again, the trial court assumed that each lot was charged an $18.00 per month fee. For the reasons outlined above, this assumption makes the award subject to speculation and conjecture and requires reversal. Further, the chancellor reasoned that each of the 221 property owners would timely pay his monthly dues in perpetuity, at a total annual rate of $216.00. For example, James Johnsen, the Club’s treasurer, testified that $3,600.00, invested at a six-percent rate of return would yield a yearly income stream of $216.00, the exact amount required to pay one year’s dues on one lot. Taking this figure, the chancery court deemed $3,600.00 as the total lost revenues per lot, multiplied that amount times 221 lots, and calculated total damages of $795,600.00.
Notably, the trial court crafted a damage award that guarantees the Club a perpetual income stream of $18.00 per month for all 221 lots. Such an award assumes that the monthly fee for all lots is $18.00 per month, that no lot owners are charter members, that each property owner (or subsequent property owner) would timely pay dues, and that the Club itself would exist in perpetuity. In effect, the Club would receive an up-front cash payment sufficient upon investment to generate monthly fees on these 221 properties forever. As a result, we reverse the award because the chancellor’s calculations are based upon speculation and conjecture.
We reverse and remand the tort damage award for further action consistent with this opinion. On remand, we direct the chancery court to consider, among other things, the type of membership and dues that attach to each lot, the nature, extent, duration, and permanency of the injury, and evidence of any mitigation of damages.
THORNTON, J., not participating.
Here, the trial court erred in ordering reformation of the deeds, rather than cancellation. Notwithstanding this mistake, we affirm the chancellor because he reached the right result. Although the court announced the wrong reason, this court is not constrained by the trial court’s rationale but may review the record for additional reasons to affirm. Jones v. Abraham, 341 Ark. 66, 73, 15 S.W.3d 310, 315 (2000) (citing State of Washington v Thompson, 339 Ark. 417, 6 S.W.3d 82 (1999)). | [
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Ray Thornton, Justice.
On December 8, 1997, appellant, Jay Michael Raley, filed a medical malpractice action against appellee, Dr. Charles Wagner. Appellant, who was born January 16, 1979, was eighteen years old at the time the complaint was filed. Appellant suffers from Hirschsprung Disease, a disease of the colon. In his complaint, appellant alleged that appellee, a pediatric surgeon, had negligently performed a “Soave Pull-Through” procedure on appellant on March 16, 1992. Appellant was thirteen-years-old at the time of the surgery, and the procedure was performed in the course of treatment of appellant’s illness. The complaint also alleged negligence in appellee’s failure to diagnose and treat subsequent complications that resulted from the procedure.
On April 28, 2000, appellee filed a motion for summary judgment. Appellee argued that appellant’s claims were barred by the Medical Malpractice Act’s two-year statute of limitations. On August 16, 2000, the trial court granted appellee’s motion for summary judgment. The trial court further concluded that the Medical Malpractice Act was constitutional. It is from this order that appellant appeals. He raises two points for our consideration. Finding no reversible error, we affirm the trial court.
In his first point on appeal, appellant contends that the trial court erred in granting appellee’s motion for summary judgment. Specifically, appellant argues that his claim was not barred by the Medical Malpractice Act’s two-year statute of limitations. We outlined the applicable law surrounding our review of a granting of summary judgment in Shelton v. Fiser, 340 Ark. 89, 8 S.W.3d 557 (2000). We explained:
The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appellate review, this court determines 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. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties.
Id. (citing Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598) (internal citations omitted).
Remaining mindful of our standard of review for summary-judgment cases, we must determine whether there was a genuine issue of fact in dispute. Specifically, we must determine whether appellant’s claims were barred by the two-year statute of limitations applicable to the Arkansas Medical Malpractice Act. Appellant first argues that pursuant to section four of Act 709 of 1979, codified as Ark. Code Ann § 16-114-203 (1987), his claims were not barred. Arkansas Code Annotated section 16-114-203 (1987) provides:
(a) All actions for medical injury shall be commenced within two (2) years after the cause of action accrues..
(b) The date of the accrual of the cause of action shall be the date of the wrongful act complained of, and no other time. However, where the action is based upon the discovery of a foreign object in the body of the injured person which is not discovered and could not reasonably have been discovered within such two-year period, the action may be commenced within one (1) year from the date of discovery or the date the foreign object reasonably should have been discovered, whichever is earlier.
(c) A minor under the age of eighteen (18) years at the time of the act, omission, or failure complained of, shall in any event have until his nineteenth birthday in which to commence an action.
(d) Any person who had been adjudicated incompetent at the time of the act, omission, or failure complained of, shall have until one (1) year after that disability is removed in which to commence an action.
Id. Appellee responds by contending that this statute was repealed by Act 997 of 1991. Act 997 provides as follows:
Be it enacted by the General Assembly of the State of Arkansas:
SECTION 1. Ark. Code Ann. § 16-114-203 is amended to read as follows:
“16-114-203. Statute of limitations.
(a) Except as otherwise provided in this section, all actions for medical injury shall be commenced within two (2) years after the cause of action accrues.
(b) The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time. However, where the action is based upon the discovery of a foreign object in the body of the injured person which is not discovered and could not reasonably have been discovered within such two-year period, the action may be commenced within one (1) year from the date of discovery or the date the foreign object reasonably should have been discovered, whichever is earlier.
(c) Except as otherwise provided in the subsection (d) of this section, if at the time at which the cause of action for medical injuries occurring from obstetrical care shall or with reasonable diligence might have first been known or discovered, the person to whom such claim has accrued shall be nine (9) years of age or younger, then such minor or the person claiming through such minor may notwithstanding that the period of time limited pursuant to subsection (a) of this section shall have expired, commence action on such claim at any time within two (2) years next after the time at which the minor shall have reached his ninth birthday, or shall have died, whichever shall have first occurred.
(d) If, at the time at which the cause of action for medical injuries occurring from obstetrical care shall or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall be a minor without a parent or legal guardian, then such minor or the person claiming through such minor may, notwithstanding that the period of time limited pursuant to subsection (a) of this section shall have expired, commence action on such claim at any time within two (2) years next after the time at which the minor shall have a parent or legal guardian or shall have died, whichever shall have first occurred; provided, however, that in no event shall the period of limitations begin to run prior to such minor’s ninth birthday unless such minor shall have died.
(e) Any person who had been adjudicated incompetent at the time of the act, omission, or failure complained of, shall have until one (1) year after that disability is removed in which to commence an action.”
SECTION 4. All laws and parts of laws in conflict with this Act are hereby repealed.
Id.
We must determine whether the statute of limitations provisions of Act 709 were repealed and replaced by Act 997 of 1991. A basic rule of statutory construction is to give effect to the intent of the legislature. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id.
In order to determine the intent of the General Assembly, we first review the language of Act 709 in comparison to the language of Act 997. We note that in many respects the Acts are similar. First, section four of Act 709 of 1979 provides an all-inclusive two-year statute of limitations. Specifically, the Act states “all actions for medical injury shall be commenced within two (2) years after the cause of action accrues.” The language in Act 997 of 1991 is somewhat similar to Act 709. However, the General Assembly added an additional phrase in Act 997. Specifically, Act 997 states, “except as otherwise provided in this section, all actions for medical injury shall be commenced within two (2) years after the cause of action accrues.” (emphasis added). Next, Act 709 of 1979 and Act 997 of 1991 each provide an exception to the two-year statute of limitations for the discovery of foreign objects. Then, Act 709 of 1979 and Act 997 of 1991 each provide an exception to the two-year statute of limitations for specified minors. However, the savings statute for all minors with medical malpractice claims allowing the claims to be brought until the minor’s nineteenth birthday, included in Act 709 is not included in Act 997 of 1991. Act 997 replaced that exception with a narrow, specific exception for minors with medical malpractice claims for medical injuries occurring from obstetrical care. Finally, both Act 709 of 1979 and Act 997 of 1991 each provide an exception to the two-year statute of limitations for persons adjudicated incompetent.
Both Act 997 of 1991 and section four of Act 709 of 1979 were complete statements of the statute of limitations applicable to medical injuries. We conclude that by enacting Act 997 of 1991 the General Assembly expressed its intention that the statute of Hmitations provisions found in Act 709 of 1979, codified as Ark. Code Arm. § 16-114-203 (1987), were replaced by Act 997 of 1991’s adoption of a new and complete section of Ark. Code Ann. § 16-114-203. We note that the language in Act 997 which states, “except as otherwise provided in this section, aU actions for medical injury shall be commenced within two (2) years after the cause of action accrues,” clearly demonstrates the legislative intent that Ark. Code Ann. § 16-114-203, as amended and enacted by Act 997, replaces the provisions of Ark. Code Ann. § 16-114-203 (1987) derived from Act 709 of 1979. The General Assembly further expressed its intent to repeal the statute of Hmitations provisions found in Act 709 of 1979 by including within Act 997 of 1991 the foHowing language: “all laws and parts of laws in conflict with this Act are hereby repealed.” Because Act 997 of 1991 repealed the statute of Hmitations provisions set out in Act 709 of 1979, and because appeflant does not have a medical injury arising from obstetrical care, we hold that appeflant was required to bring his claim within two years from the time the cause of action accrued.
Appellant next argues that because he is a minor, the statute of Hmitations appHcable to his action is found at Ark. Code Ann. § 16-56-116 (1987). We have previously addressed this issue. Specifically, in Shelton, supra, we were asked to determine whether the general statute of Hmitations found in Ark. Code Ann. § 16-56-116, or the specific two-year statute of Hmitations found in the Arkansas Medical Malpractice Act, appHed to a minor’s medical malpractice claim. Id. Noting that a general statute must yield when there is a specific statute involving the particular issue, we held that the statute of Hmitations appHcable to a minor in a malpractice case was the specific two-year statute of Hmitations found in the Medical Malpractice Act and not the general savings statute for claims brought by minors found at Ark. Code. Ann. § 16-56-116. Id. Applying our holding in Shelton to the case now before us, we conclude that appellant’s argument must fail.
In his second point on appeal, appellant argues that the two-year statute of limitations found in the Arkansas Medical Malpractice Act is unconstitutional. Specifically, appellant argues that the statute of limitations found in the Arkansas Medical Malpractice Act violates the equal protection and due process clauses of the United States Constitution and the Arkansas Constitution. Appellant argues that there is no rational basis for treating minors with medical injuries differently than minors with other tort injuries. Specifically, he contends that there is no rational basis for applying the two-year statute of limitations set forth in the Medical Malpractice Act to minors with medical malpractice claims and applying the general savings statute to minors with other tort actions.
Appellee responds to appellant’s contention by arguing that there is a rational basis for applying a different statute of limitations to minors with medical malpractice actions. Appellee argues that the General Assembly intended to control health care costs through its enactment of the Arkansas Medical Malpractice Act. Appellee contends that health care costs are controlled by encouraging individuals to bring their medical malpractice claims within two years and that health care costs are further controlled by applying the two-year statute of hmitations to minors with medical malpractice claims. Appellee cites the following language from Act 709 of 1979 as articulating the legislature’s intentions. Act 709 of 1979 states in relevant part:
SECTION 11. Emergency Clause. It is hereby found, determined and declared by the General Assembly that the threat of legal actions for medical injury have resulted in increased rates for malpractice insurance which in turn causes and contributes to an increase in health care costs placing a heavy burden on those who can least afford such increases and that the threat of such actions contributes to expensive medical procedures to be performed by physicians and others which otherwise would not be considered necessary and that this Act should be given effect immediately to help control the spiraling cost of health care. Therefore, an emergency is hereby declared to exist, and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.
Id.
After reviewing the emergency clause, we hold that there is a rational basis for applying the two-year statute of limitations to minor plaintiffs in medical malpractice actions while allowing minor plaintiffs in other tort actions until their twenty-first birthday to bring forward a claim. We conclude that the rational basis for applying the shorter statute of limitations to the minors with the medical malpractice actions is to control health care cost paid by the people of Arkansas. The trial court found that the Arkansas Medical Malpractice Act is constitutional, and we cannot say that this finding was erroneous. See Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983) (holding that every act carries a strong presumption of constitutionality). Having found no reversible errors, we affirm the trial court.
Affirmed.
Glaze, Corbin, and Imber, JJ., dissent.
We note that appellant makes reference to Article 2, Section 13, of the Arkansas Constitution in his brief. This section is known as the “open courts” provision of the Arkansas Constitution. This provision provides that all persons are entitled to a certain remedy in the law and ought to be able to obtain justice freely. Id. Although appellant raised this constitutional provision in his brief, he failed to develop an argument involving this provision. Additionally, this argument was not frilly raised or developed below. We have held that when a party cites no authority or convincing argument on an issue, and the result is not apparent without further research, the appellate court will not address the issue. Jones v. Abraham, 341 Ark. 66, 15 S.W.3d 310 (2000). Because appellant has failed to provide this court with a convincing argument on this issue, we will not address this argument on appeal.
We note that appellant also argues that the Medical Malpractice Act is unconstitutional because it treats minors with medical malpractice claims differently than minors with obstetrical care medical malpractice claims. Because this argument was not raised below, we will not address it for the first time on appeal. See Barclay v. First Paris Holding Co., 344 Ark. 711, 42 S.W.3d 496 (2001) (holding that appellant was procedurally barred from raising an argument on appeal because it was not raised below). | [
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] |
Robert L. Brown, Justice.
Appellant Curtis Ray Hollis appeals from his judgments of conviction for capital felony murder and aggravated robbery and his sentences of life without parole and thirty years, respectively. His sole issue on appeal is that he was illegally seized by police officers. He contends that this is so because his consent to be seized was involuntary due to the fact that he was not sufficiently informed to allow him to give an intelligent consent. This point is meritless, and we affirm.
At approximately four o’clock a.m. on July 13, 1998, the Exxon service station at the intersection of Roosevelt Road and Interstate 30 in Little Rock was robbed and the clerk on duty, Robert Strawn, was killed. The following facts concerning the events of the robbery and' murder are taken from Hollis’s statement to Little Rock police officers, which was admitted into evidence, and the trial testimony of his accomplice, Brian Morris. In the early morning hours of July 13, 1998’ Hollis, a black man, and Morris, a white man, were across the street from the Exxon station. Morris was talking on a public phone. Both men had been drinking a fruit punch mixed with tequila. During this time, they were seen by a Democrat-Gazette newspaper delivery man. Morris had a Buder .22 caliber derringer in his possession, and Morris and Hollis decided to rob the Exxon station. The two men were let into the station by Strawn, and Morris purchased candy, chips, and a soda. Hollis next began to buy certain items. During this transaction, Morris pulled his derringer pistol on Strawn. Morris, believing that Strawn was reaching for a weapon, shot Strawn once in the chest.
After Strawn fell to the ground, Hollis and Morris went behind the counter to the cash register. As they took money from the register, Strawn got up and began struggling with Morris. Hollis took Strawn’s .38 caliber revolver from him and shot Strawn twice in the left thigh. Morris shouted for Hollis to kill Strawn, but Hollis did not. Morris eventually took the .38 caliber revolver from Hollis and shot Strawn in the back of the head, killing him.
After a futile search for more money, Hollis and Morris took cigars and a case of lighters from the station. They also took the .38 caliber revolver with them and left the scene in Strawn’s own vehicle. They first stopped for gas and then proceeded to travel north on Interstate 30 to Prothro Junction. There, they exited, and Morris dropped Hollis off at the Masters Inn. Morris hid Strawn’s vehicle two blocks down the street at the Days Inn. The two men checked into a room at the Masters Inn at about five o’clock a.m.
Shortly after the shooting, Litde Rock police units were called to the scene of the robbery and murder. Police officers investigating the crime scene received a tip from the Democrat-Gazette worker that a white man and a black man were in the vicinity about the time the crime was committed.
Police officers located Strawn’s car roughly twenty-four hours later at the Days Inn in Prothro Junction after receiving a call that a suspicious car seemed to be abandoned. Police officers canvassed the immediate area where the car was found. Across the street from where the car was found, Little Rock Detectives Eric Knowles and Charles Weaver located a hotel clerk at the Masters Inn who told them that a white man and a black man had checked into a room in her hotel around five o’clock a.m. on July 13, 1998, which, was an hour after the crime was committed. While the detectives were talking to the clerk, Hollis entered the lobby and then left. The motel clerk identified Hollis as one of the men in question and gave the detectives his room number. After Hollis left the hotel lobby, he went back to his room. A few minutes later, he left his room and proceeded to walk across the street to a Burger King restaurant. After Hollis left the Burger King, he crossed the street to come back to the Masters Inn, and the detectives made contact with him.
Detectives Knowles and Weaver testified at the,omnibus hearing about what transpired next. Dressed in suits and ties, the detectives initially identified themselves as homicide investigators. Detective Weaver advised him that they were investigating a homicide. They asked Hollis his name and date of birth, which he supplied. They also asked him to come down to the police station to be questioned but told him that he was under no obligation to do so and that he was not under arrest. Hollis agreed to go with them and was described by one of the detectives as “very cooperative.” Hollis was not handcuffed or otherwise restrained and was placed in the detectives’ unmarked police car for several minutes. During that time the detectives ran a warrant check on him, which revealed he had several felony warrants in Ptdaski County outstanding for failure to appear in court. After the warrants were found, the detectives arrested and handcuffed Hollis. At about the same time the arrest occurred, Detectives Knowles and Weaver received information from other police officers that they had done a preliminary search of Hollis’s and Morris’s room at the Masters Inn. They found two guns in the room, a Rossi .38 caliber revolver and a Butler .22 caliber derringer. They also found items that were suspected to be stolen from the Exxon station. Hollis was placed in a marked patrol car and taken to the police station. A few hours later, Hollis was Mirandized at the police station. He signed a Miranda waiver form and then gave a taped statement in which he admitted his involvement in the robbery and homicide. Subsequently, Hollis was charged with capital murder, aggravated robbery, and theft.
After hearing testimony at the omnibus hearing from Detectives Knowles and Weaver, the circuit court denied Hollis’s motion to suppress his statement. The State waived the death penalty for Hollis and proceeded to trial. At his trial, Hollis’s statement to police officers was introduced into evidence and the medical examiner, Dr. Frank Joseph Peretti, testified that Strawn died of multiple gunshot wounds. He concluded that both the chest wound and the head wound inflicted by Morris were fatal wounds, but that Strawn could have survived the thigh wounds inflicted by Hollis. Brian Morris testified for the defense that it was he who killed Strawn. After the one-day trial, the jury convicted Hollis of capital felony murder, aggravated robbery, and theft of property. Hollis was sentenced to fife without parole for the capital felony murder and thirty years for the aggravated assault, to run concurrently. The circuit court merged the theft conviction with the other two.
Hollis’s single point on appeal is that he was illegally seized by the Little Rock detectives because his consent to be questioned was not made knowingly and intelligently. He contends that his consent was invalid because the officers who obtained the consent from him failed to disclose certain facts about their investigation. This is a novel argument. From his motion to suppress, we glean that Hollis did specifically allude to Rule 3.2, which reads:
A law enforcement officer who has detained a person under Rule 3.1 shall immediately advise that person of his official identity and the reason for the detention.
Ark. R. Crim. P. 3.2 (emphasis added). Hollis is now apparently using this rule on appeal as a springboard for his uninformed consent argument. However, he never argued uninformed consent to the circuit court. And the sole legal authority he cites in support of his argument is an inapposite civil case, Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983).
Ordinarily, our standard of review of a circuit court’s decision on suppression of a statement is that this court makes an independent determination based on the totality of the circumstances and will only reverse if the circuit court’s decision is against the preponderance of the evidence. Bunch v. State, 346 Ark. 33, 57 S.W.3d 124 (2001) (quoting Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998)); Lacy v. State, 345 Ark. 63, 44 S.W.3d 296 (2001). In the instant case, however, Hollis mounts an argument on appeal that he did not specifically make to the circuit court, even though he did cite Ark. R. Crim. P. 3.2 in his motion to suppress. This he cannot do. See Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996) (even in a case in which a sentence of fife without parole has been imposed, the appellant is bound by the scope of the argument he made at the trial level); see also Hill v. State, 325 Ark. 419, 931 S.W.2d 64 (1996); Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). Moreover, he makes a new and untested argument and fails to cite convincing authority to support it. We have made it exceedingly clear that we will not consider an argument, even a constitutional one, when the appellant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well taken. Dougan v. State, 330 Ark. 827, 957 S.W.2d 182 (1997); Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996); Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).
We recognize that in this case Hollis received a sentence of life without parole. In such cases, we are required by our own Supreme Court Rules to review all adverse rulings to Hollis made on motions, objections, and other requests. Ark. Sup. Ct. R. 4-3(h). Rule 4-3 (h), however, does not require this court to review an argument not specifically made to the circuit court or to research a novel argument for an appellant who cites no apposite authority.
For the foregoing reasons, the judgment of convictions and sentences are affirmed. The record has been reviewed for other reversible error, as required by Supreme Court Rule 4-3 (h), and none has been found.
Affirmed. | [
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Annabelle Clinton Imber, Justice.
Appellant Frank Dejulius brings this appeal from an order of the Lonoke County Circuit Court approving a class-action settlement between Appellees Paul Sumner and Charles Miller, plaintiffs below, and Appellees Alltel Corporation and Alltel Communications, Inc. (collectively, “Alltel”), defendants below. Dejulius alleges that the circuit court erred in approving the settlement, as it was not in the best interests of the class, and in denying his motion to intervene as an objector. Because this case has come before us on a prior appeal , our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(7) (2007). We find no error and affirm.
In February of 2003, Sumner and Miller filed a class-action complaint against Alltel for false and misleading advertising. The complaint, twice amended, alleged that Alltel advertised unlimited wireless telephone services at a monthly price of $49.95. Some advertisements were alleged to have offered the fixed rate for the life of the customer. Sumner and Miller contended that Alltel then raised the price of the plan to $59.95 per month and increased roaming charges. The complaint alleged that Alltel’s actions violated the Arkansas Deceptive Trade Practices Act, Ark. Code Ann. §§ 4-88-101 to -115 (Repl. 2001 & Supp. 2007), as well as the consumer-protection statutes of the various jurisdictions of the proposed class members.
Sumner and Miller negotiated a settlement with Alltel before the class was certified and before notice of the action was sent out to proposed class members. The settlement agreement set out a series of discounts and coupons for class members, in exchange for which Alltel would be released of all claims that were or could have been raised in the litigation. The circuit court entered an order conditionally certifying the class for settlement purposes only and preliminarily approving the settlement. The court also approved the notice plan proposed by the parties and ordered that notice of the litigation and settlement be mailed to all class members within forty days after entry of the preliminary-approval order. A final approval hearing was scheduled.
Presumably after receiving notice, Dejulius filed an objection to the proposed settlement, characterizing it as inadequate, unfair, and unreasonable. Specifically, Dejulius argued that class members would receive no relief under the settlement if they declined to use Alltel’s wireless telephone services and that the terms of the settlement were more beneficial to Alltel than to the class members. Dejulius filed a motion to intervene pursuant to Ark. R. Civ. P. 24 (2007). The circuit court denied his motion and entered a final order approving the settlement. The court found that the value of the negotiated relief was as high as forty-four million dollars, which the court considered fair, reasonable, and adequate. Dejulius filed a timely notice of appeal, designating both the denial of his motion to intervene and the approval of the settlement as the orders from which the appeal was taken.
Under a de novo, clearly-erroneous, or abuse-of-discretion standard, it is clear that the circuit court did not err in denying Dejulius’s motion to intervene. To intervene as a matter of right under Ark. R. Civ. P. 24(a)(2) (2007), an applicant must show three things: (1) that he has a recognized interest in the subject matter of the primary litigation, (2) that his interest might be impaired by the disposition of the suit, and (3) that his interest is not adequately represented by existing parties. Med. Park Hosp. v. Bancorp S. Bank of Hope, 357 Ark. 316, 166 S.W.3d 19 (2004); Billabong Prods., Inc. v. Orange City Bank, 278 Ark. 206, 644 S.W.2d 594 (1983). Dejulius has failed to establish eligibility for intervention pursuant to these requirements.
Even if Dejulius’s receipt of the notice of this litigation and settlement is sufficient to show that he is a class member and thus has a recognized interest in the subject matter, he has not shown that his interest might be impaired by disposition of the litigation. Generally, if a person seeking intervention will be left with the right to pursue his own independent remedy against the parties, regardless of the outcome of the pending case, then he has no interest that needs protecting by intervention of right. Billabong Prods., Inc. v. Orange City Bank, supra. The settlement agreement at issue here, as well as the notice to proposed class members, made clear that proposed class members could request to be excluded from the settlement class. Dejulius did not make any such request. Had he done so, he would not have been bound by the final order approving the settlement, and he would have retained his claims against Alltel. By requesting exclusion, Dejulius would have máintained the right to pursue his own independent remedy.
We find no merit in Dejulius’s argument that he did not receive a copy of the settlement agreement in sufficient time for him to consider his options and decide upon exclusion. The record simply does not support this contention. Dejulius has not shown when he received notice or when he or his attorney obtained a copy of the settlement agreement. The record contains only an affidavit from counsel for Sumner and Miller stating that Dejulius’s attorney requested a copy of the settlement agreement on February 28, 2007, tbe deadline for objections and requests for exclusion. The notice, sent to class members by the end of December 2006, clearly stated that proposed class members could obtain a copy of the settlement agreement from class counsel or the circuit court clerk. Dejulius has not established that he was prevented from doing so earlier.
Dejulius has also failed to show that his interest is not adequately represented by existing parties. He has simply made no effort to demonstrate that the class representatives and class counsel did not protect his interests as a class member. In fact, at the final approval hearing, Dejulius’s counsel volunteered his opinion that the class counsel were qualified and experienced and reached the settlement properly. At no time did Dejulius challenge their adequacy or that of the class representatives. Dejulius’s unsupported allegation that the parties failed to protect his interests is insufficient. For these reasons, we conclude that the circuit court properly denied his motion to intervene.
Because Dejulius failed to intervene below, he lacks standing to appeal the circuit court’s approval of the settlement. It is well settled in Arkansas that an unnamed class member who failed to intervene at the trial court level cannot appeal a settlement entered into by the named class members, even if the unnamed class member submitted objections to the fairness of the settlement. Haberman v. Lisle, 317 Ark. 600, 884 S.W.2d 262 (1994). We reaffirmed this holding in Ballard v. Advance America, 349 Ark. 545, 549-50, 79 S.W.3d 835, 837 (2002), where we cautioned:
By attempting to intervene at the last minute, rather than opting out of a settlement to which they objected, appellants willingly undertook the risk that their motion to intervene might be denied for failure to meet the requirements of Rule 24(a) of the Arkansas Rules of Civil Procedure, and that they would then be bound by the setdement as approved by the circuit court. Appellants’ strategic election not to opt out of the setdement has left them without standing to pursue this appeal.
Similarly, Dejulius is now precluded from appealing the approval of the settlement. We therefore need not address his arguments regarding the fairness and reasonableness of the settlement.
Affirmed.
Brown, J., not participating.
Alltel Corp. v. Sumner, 360 Ark. 573, 203 S.W.3d 77 (2005).
For settlement purposes, counsel for Sumner and Miller joined with counsel for two other similar class actions against Alltel. The class representative from one of those two actions, Christa Brunst, has also appealed the approval of the settlement to this court, alleging that counsel for Alltel colluded with counsel for Sumner and Miller to reach a setdement to which Brunst objected. However, Brunst has since voluntarily dismissed her appeal.
We have not set forth a standard of review for the denial of a motion to intervene by right filed pursuant to Ark. R. Civ. P. 24(a)(2), when that denial is based on a failure by the appellant to meet the requirements of Rule 24(a)(2) rather than on untimeliness of the motion. Med. Park Hosp. v. Bancorp S. Bank of Hope, 357 Ark. 316, 166 S.W.3d 19 (2004). As we indicated in Medical Park, we are hesitant to articulate a standard of review when the parties have not addressed the issue. Id. In the instant case, the parties agreed that the applicable standard was abuse of discretion and did not further develop the issue; thus, we decline to decide.
Dejulius’s motion to intervene contended that he was entitled to both intervention as a matter of right, under Ark. R. Civ. P. 24(a)(2) (2007), and permissive intervention, under Ark. R. Civ. P. 24(b)(2) (2007). The circuit court’s order addressed only intervention as a matter of right. Although Dejulius does not address the issue in his brief to this court, his counsel articulated at oral argument that his position is that he was entitled to intervention of right, rather than permissive intervention. | [
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ANNABELLE CLINTON IMBER, Justice.
This case, like the six other companion cases decided today, see State v. Richardson, 373 Ark. 1, 280 S.W.3d 20 (2008); State v. Ashwood, 373 Ark. 7, 280 S.W.3d 25 (2008); State v. Joshaway, 373 Ark. 9, 280 S.W.3d 26 (2008); State v. Holden, 373 Ark. 5, 280 S.W.3d 23 (2008); State v. Lee, 373 Ark. 12, 280 S.W.3d 28 (2008); State v. Whitfield, 373 Ark. 36, 280 S.W.3d 29 (2008), involves the issue of whether the Phillips County Circuit Court erred by dismissing the charge against Appellee Johnny Weaver for an allegedly defective arrest warrant. Mayor Weaver and five other former members of the West Helena City Council, as well as the former West Helena City Clerk, were arrested and charged with theft of property for negotiating checks that had been authorized by a vote of the City Council on November 10, 2005. The checks had been designated as salary payments for the year 2006, although the city officials would no longer be in office as of December 31, 2005, due to the consolidation of the cities of Helena and West Helena. Mayor Weaver, as well as the other defendants, filed a motion to dismiss the charge on grounds that the arrest warrant was unlawful under Arkansas Rule of Criminal Procedure 7.1 (2007). The Phillips County Circuit Court granted the motion and dismissed the charge. The State now appeals the circuit court’s order of dismissal. The circuit court made its ruhng from the bench on March 26, 2007, and the State filed a notice of appeal from that ruling on April 18,2007. Nevertheless, the circuit court did not enter its written order until June 7, 2007. The State has thirty days from the entry of order or judgment to file a notice of appeal. Ark. R. App. P.-Crim. 3(b) (2007). Despite the filing discrepancy in this case, we conclude that the appeal was properly perfected because, under Arkansas Rules of Appellate Procedure-Criminal 2(b)(1) (2007), a notice of appeal filed after the circuit court announces a decision but before the entry of a written order shall be treated as though it was filed the day after the order was entered.
For the reasons stated in State v. Richardson, supra, we accept jurisdiction over the instant appeal pursuant to Arkansas Rule of Appellate Procedure&emdash;Criminal 3 (2007), and we conclude that the circuit court erred by dismissing the charge against Mayor Weaver for an allegedly defective arrest warrant.
Reversed and remanded. | [
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Paul E. Danielson, Justice.
Appellant Mario Clark appeals from the circuit court’s denial of his petition pursuant to Ark. R. Crim. P. 37. He asserts two points on appeal: (1) that the circuit court erred in denying his Rule 37 petition because he was improperly convicted and sentenced for attempted capital murder, first-degree battery, and aggravated robbery, and (2) that his counsel was ineffective because counsel failed to make an objection as to whether the circuit court could enter convictions and sentences for all the charges. We hold that the circuit court did not clearly err and affirm the circuit court’s order.
The record reveals that on June 3, 2003, Clark was tried by a jury for the robbery of Cherry Street Liquor Store, which occurred October 16, 2001. In the process of the robbery, Clark used a .38 caliber revolver and fired two shots at the store clerk, Mr. John Grider, for not cooperating. While Grider was not fatally injured, he was injured by the second shot, which struck him in the leg. The jury found Clark guilty of aggravated robbery, first-degree battery, and attempted capital murder and sentenced him to 72 months’ imprisonment for attempted capital murder, 60 months’ imprisonment for first-degree battery, and 120 months’ imprisonment for aggravated robbery. The court of appeals affirmed in Clark v. State, 94 Ark. App. 5, 223 S.W.3d 66 (2006).
On March 22, 2006, Clark filed a Rule 37 petition with the circuit court, which alleged four grounds for relief: (1) ineffective assistance of counsel; (2) double jeopardy; (3) denial of a fair and impartial trial; and (4) denial of due process of law. The circuit court denied Clark’s petition on August 31, 2006, and Clark filed his notice of appeal on September 18, 2006.
Clark’s robbery of Cherry Street Liquor Store violated several statutes; however, the issue in the instant appeal is whether his convictions on all three charges of aggravated robbery, first-degree battery, and attempted capital murder violated double jeopardy. While the circuit court found that Clark could not raise a double-jeopardy violation because he had not raised it at trial or on appeal, such a claim may be raised for the first time in a Rule 37 petition. See Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000).
Under the standard of review for a proceeding on a Rule 37.1 petition, the denial of postconviction relief is not reversed unless the circuit court’s findings are clearly erroneous or clearly against the preponderance of the evidence. See O’Connor v. State, 367 Ark. 173, 238 S.W.3d 104 (2006). 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. See Flores v. State, 350 Ark. 198, 85 S.W.3d 896 (2002).
Arkansas law provides three distinct ways in which an offense qualifies as a lesser-included offense. See McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002). Under Ark. Code Ann. § 5-1-110(b) (Supp. 2007), if any of the three criteria are met, an offense is a lesser-included offense of another:
(1) Is established by proof of the same or less than all of the elements required to establish the commission of the offense charged; ■
(2) Consists of an attempt to commit the offense charged or to commit an offense otherwise included within the offense charged; or
(3) Differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish the offense’s commission.
Ark. Code Ann. § 5-1-110(b).
Therefore, the relevant statutes must be reviewed to determine whether aggravated robbery is a lesser-included offense of attempted capital murder and whether first-degree battery is a lesser-included offense of aggravated robbery.
A. Attempted Capital Murder & Aggravated Robbery
Clark cites Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982), and Barnum v. State, 276 S.W.3d 477, 637 S.W.2d 534 (1982), as authority for the proposition that a defendant may not be sentenced on both a charged felony and an underlying felony, as the underlying felony is a lesser-included offense. Indeed, this was once the law; however, Ark. Code Ann. § 5-1-110(d)(1) changed that law. See Walker v. State, 353 Ark. 12, 110 S.W.3d752 (2003). Section 5-1-110(d)(1) (Repl. 1997) states, in pertinent part, as follows: “Notwithstanding any provision of law to the contrary, separate convictions and sentences are authorized for: (A) Capital murder, § 5-10-101, and any felonies utilized as underlying felonies for the murderf.]” Circuit courts now have specific authority to sentence a defendant for the underlying felony of the capital murder, as well as the murder itself. See Walker v. State, supra.
Clark was charged with attempted capital murder under Ark. Code Ann. § 5-3-201. An individual may be convicted of attempting to commit an offense if:
(a) A person attempts to commit an offense if he or she purposely engages in conduct that:
(1) Would constitute an offense if the attendant circumstances were as the person believes them to be; or
(2) Constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense whether or not the attendant circumstances are as the person believes them to be.
(b) When causing a particular result is an element of the offense, a person commits the offense of criminal attempt if, acting with the kind of culpable mental state otherwise required for the commission of the offense, the person purposely engages in conduct that constitutes a substantial step in a course of conduct intended or known to cause the particular result.
(c) Conduct is not a substantial step under this section unless the conduct is strongly corroborative of the person’s criminal purpose.
Ark. Code Ann. § 5-3-201 (Repl. 2006).
In the instant case, robbery was used as the underlying felony for the attempted-capital-murder charge. Therefore, the elements required for Clark to be convicted of attempted capital murder were that he committed or attempted to commit robbery, and, in the course of or in flight from such robbery, caused the death of a person under circumstances manifesting extreme indifference to the value of human life. See Ark. Code Ann. § 5-10-101(a)(l) (Supp. 2006). We have held that the required intent when a person is killed in the course of committing a felony, here robbery, is the intent to commit the felony, and not the intent to commit murder. See Jordan v. State, 356 Ark. 248, 147 S.W.3d 691 (2004); Isom v. State, 356 Ark. 156, 148 S.W.3d 257 (2004); Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999).
For an aggravated-robbery charge, the first required element is the commission of the robbery itself. See Ark. Code Ann. § 5-12-103 (Repl. 2006). In addition, that person must have also either: (1) been armed with a deadly weapon, (2) represented by words or conduct that he or she was armed with a deadly weapon, or (3) inflicted or attempted to inflict death or serious physical injury upon another. See id.
Here, the circuit court instructed the jury as to all the elements possible for aggravated robbery, and the jury returned a general verdict, failing to specify the ground upon which the verdict rested. Therefore, if any one of the elements for aggravated robbery renders Clark’s conviction for both aggravated robbery and attempted capital murder in violation of double jeopardy, the circuit court erred in denying his Rule 37 petition.
However, aggravated robbery is not a lesser-included offense of attempted capital murder. While an aggravated-robbery charge shares the intent to rob with attempted capital murder, aggravated robbery also requires one of three other elements. Two of those elements, being armed with a deadly weapon, or representing as such, are unique to aggravated robbery. The third possible element of aggravated robbery is having inflicted or attempted to inflict death or serious physical injury upon another. This element is not equivalent to the element in attempted capital murder that the defendant, in the course of or in flight from such robbery, caused the death of a person under circumstances manifesting extreme indifference to the value of human life. For the offense of attempted capital murder, the focus of the intent remains on the actual robbery, whereas in aggravated robbery the focus is on the intent to inflict death or serious physical injury.
Thus, we conclude that aggravated robbery is not a lesser-included offense of attempted capital murder under section 5-1-110(b) and, accordingly, that the circuit court did not err in denying Clark’s Rule 37 petition on that point.
B. Aggravated Robbery & First-Degree Battery
The remaining issue is whether first-degree battery is a lesser-included offense of aggravated robbery. The charging instrument and the jury instructions were both limited to the second definition of battery listed in Ark. Code Ann. § 5-13-201(a)(l) (Repl. 1997). Therefore, the State had to prove that Clark, with the purpose of causing physical injury to another person, caused physical injury by means of a firearm, to convict him of first-degree battery.
As previously noted, the elements of aggravated robbery include the robbery itself, plus one of the following elements: (1) the defendant was armed with a deadly weapon, (2) the defendant represented by words or conduct that he or she was armed with a deadly weapon, or (3) the defendant inflicted or attempted to inflict death or serious physical injury upon another. See Ark. Code Ann. 5-12-103 (Repl. 2006).
First-degree battery is not a lesser-included offense of aggravated robbery as it is not established by proof of the same or less than all of the elements required to prove aggravated robbery. First-degree battery, as defined by the instructions in this case, requires proof of a purpose of causing any physical injury to another person. Such a requirement is not needed for aggravated robbery, unless the aggravated robbery is shown by proof that the defendant inflicted or attempted to inflict death or serious physical injury. However, even if the aggravated robbery is established with proof that the defendant inflicted or attempted to inflict death or serious physical injury, only first-degree battery contains the unique proof of the use of a firearm to cause injury.
Furthermore, first-degree battery simply requires proof of a purpose of causing some kind of physical injury. Aggravated robbery requires proof of a robbery, either with a deadly weapon, a representation that the defendant is armed with a deadly weapon, or the infliction/attempted infliction of death or serious physical injury on another. As previously noted, the risk of injury is not the only difference between the two crimes. First-degree battery requires proof of the use of a firearm, whereas aggravated robbery does not; aggravated robbery requires proof of a robbery, whereas first-degree battery does not. Thus, we conclude that first-degree battery is not a lesser-included offense of aggravated robbery under section 5-l-110(b).
Clark’s final point on appeal is that his attorney was ineffective for failing to move the circuit court to limit the judgment of conviction to one charge. However, as the State avers, this argument was not preserved for appellate review. Clark failed to raise this issue at the circuit court level and, as a result, the circuit court did not provide a ruling. Therefore, Clark is procedurally barred from raising this issue on appeal. See Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006).
Because aggravated robbery is not a lesser-included offense of attempted capital murder, and first-degree battery is not a lesser-included offense of aggravated robbery, the circuit court did not err in denying Clark’s Rule 37 petition.
Affirmed.
While there are more current versions of this statute, they have been amended since the time of Clark’s convictions. | [
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Paul E. Danielson, Justice.
Appellant Thomas K. Felton, as personal representative of the estate of A.G. Felton, deceased, appeals from the circuit court’s order of dismissal with prejudice granting summary judgment to appellees Rebsamen Medical Center, Inc., and its insurer, The Medical Assurance Co., Inc. Felton asserts that the circuit court erred in granting summary judgment to both Rebsamen and Medical Assurance. We affirm the circuit court’s order.
On December 17, 2004, Felton filed a complaint against Rebsamen and Medical Assurance, asserting a cause of action for wrongful death, including claims of medical malpractice and ordinary negligence, and survival. The complaint alleged that Rebsamen “was and remains a non-profit corporation engaged in caring for individuals who are in need of medical care and treatment.” It further alleged that if Rebsamen asserted that it was not subject to suit for tort, “Plaintiff hereby brings a direct action against THE MEDICAL ASSURANCE COMPANY, INC. (“MEDICAL ASSURANCE”), the liability insurance carrier for REBSAMEN, pursuant to Ark. Code Ann. § 23-79-210.”
Rebsamen answered the complaint, admitting that Medical Assurance had provided it with liability insurance coverage at certain times and further admitting “that it is entitled to immunity from damages exceeding its insurance policy limits based on its status as a charitable institution.” It further affirmatively pled that it was “a charitable institution and is entitled to immunity from any damages beyond its insurance policy limits.” Medical Assurance also answered, denying that the circuit court had jurisdiction over it and admitting that it had provided liability insurance coverage during certain time periods for Rebsamen, “a charitable institution.” It further pled, affirmatively, that Rebsamen was a charitable institution and was entitled to immunity from any damages beyond its insurance policy limits. In addition, Medical Assurance affirmatively pled that “based on Clayborn v. Bankers Standard Ins. Co., 348 Ark. 557, 75 S.W.3d 174 (2002), no cause of action lies against this defendant and, therefore, the complaint against it should be dismissed.”
On February 18, 2005, the circuit court entered an order of dismissal without prejudice as to Medical Assurance, based upon Felton’s oral motion to nonsuit his claims against it. However, on July 12, 2006, Felton filed a first amended complaint reasserting its claims against Medical Assurance, stating:
6. On December 15,2005, the Arkansas Supreme Court specifically overruled both the Scamardo [v. Jaggers, 356 Ark. 236, 149 S.W.3d 311 (2004)] and Clayborn [v. Bankers Standard Ins. Co., 348 Ark. 557, 75 S.W.3d 174 (2002)] cases in the case of Low v. Insurance Co. of N.Am.,_S.W.3d_,2005 WL 3436667, 8 (Ark. Dec. 15, 2005) (Attached hereto as Exhibit A). In overruling these cases, the Arkansas Supreme Court returned to the statutory interpretation that the “not subject to suit for tort” language in the direct action statute (Ark. Code Ann. § 23-79-210), as being synonymous with a charitable/not-for-profit organization’s immunity from tort liability. Id. at 7.
7. Thus, according to the Arkansas Supreme Court’s ruling in Low, supra, MEDICAL ASSURANCE is a proper party to this action. Therefore, Thomas K. Felton, as Plaintiff herein, adopts, re-alleges and incorporates by reference each and every allegation set forth in Plaintiffs original Complaint together with any and all additional charging allegations set forth herein not inconsistent with ■ the preceding and as if set forth word for word against both REBSAMEN and MEDICAL ASSURANCE.
In its answer to this complaint, Rebsamen admitted this court’s decision in Low v. Insurance Co. of North America, 364 Ark. 427, 220 S.W.3d 670 (2005), but denied the allegations in paragraphs six and seven of the complaint. It further incorporated by reference, “as if set out word for word, its answer to the plaintiffs original complaint, including affirmative defenses, . . . [that] would include, but not be limited to, the affirmative defense of charitable immunity.” Medical Assurance similarly responded and affirmatively asserted that the first amended complaint was barred by the statute of limitations.
On January 31, 2007, Medical Assurance moved for summary judgment in the matter, asserting that Felton’s cause of action against it was time-barred. In its brief in support of its motion for summary judgment, Rebsamen claimed that it was entitled to summary judgment due to its status as a nonprofit, charitable entity, rendering it immune from tort liability under Arkansas law. Felton responded to Rebsamen’s motion, claiming that it had “conditioned its charitable immunity defense” and, thus, waived the defense. He further alleged that because Rebsamen led him to believe his claims were covered up to its policy limits by documents turned over in discovery, Rebsamen should be estopped from asserting that it was immune from the action. In response to Medical Assurance’s summary-judgment motion, Felton claimed that Medical Assurance had waived its statute-of-limitations defense and should be estopped from asserting it. He further asserted that laches should also bar its defense.
On March 14, 2007, a hearing was held on the motions for summary judgment. During the hearing, counsel for Felton urged that this court’s decision in Low v. Insurance Co. of North America, supra, should be applied prospectively to cases filed after the date of the decision, December 15, 2005. Midway through the hearing, the circuit court made the following ruling with respect to Medical Assurance’s motion:
I’ve heard enough. Thank you. All right. I’m going to grant your motion for a summary judgment with regards to this. I do think that the Low case does apply. I think that in this particular case there’s no question that the action was filed outside the time limit, so I don’t really think that’s the issue.
I think that the arguments are more so along the lines of whether there’s an estoppel or waiver, but I think that based upon the case law and the cases cited that the — I don’t believe that the court would prospectively apply with Low. I think it has already retrospectively applied Low. So it would, I guess, go against its own rulings if it decides to do that. So I’ll grant [Medical Assurance’s] motion with regards to that.
It later ruled on Rebsamen’s motion, stating:
All right. I think the situation that exists here is one where a party has insurance and there’s no question that they have insurance and that there may be liability on the part of the party, but the issue becomes whether or not the limitations period in the statute or whether a defense in the statute be the one that would be applicable and in this case, what I have not heard is that the argument with regards to charitable immunity does not apply.
So I think that there’s no question under Low that Rebsamen would be immune from liability. So I think that part of the case is easy to decide.
I think the only issue is whether or not there’s been a waiver of that in the answer and I agree that if the first answer had been the only answer in this case that had been filed, then I would be with you on that one because it does not state — or it does not state that it is immune completely.
It just says that it’s immune up to the point of liability, but the problem is that in July of 2006, they file an answer incorporating word for word everything that was filed in the first answer, which basically says that, and then adds in an additional fine saying “and also we assert the defense of charitable immunity.”
Now, in asserting that defense, then I have to go back to Low and Low says that basically the hospital is immune unless there’s something that would indicate that the filing of it was not proper and that it is not appropriate —• it wasn’t appropriately raised in the pleading. You know, the waiver may arguably apply. Is it one of those 12(b)(6) motions that should have been raised when the complaint was filed or 12(b) (10) or (8) or whichever one one [sic] may arguably say would apply?
That might be true with regards to the first one, but when they filed a response to the amended complaint and they assert that, then I believe that is timely.
So I’m going to grant their motion for summary judgment with regards to that as well.
An order granting the motions for summary judgment and dismissing Rebsamen and Medical Assurance was entered, and Felton timely filed his notice of appeal.
The first issue to be addressed is whether the circuit court erred in granting summary judgment to Rebsamen. Felton argues that Rebsamen failed to raise the defense of charitable immunity in its answer to his original complaint and neglected to amend its answer until after the limitations period had run with respect to Medical Assurance. He claims that because Rebsamen did not timely amend its pleadings to assert the full measure of charitable immunity as it was obligated to do, it waived the defense. He maintains that Rebsamen misled him to his prejudice and that its actions substantially affected his rights. He further avers that Rebsamen should be estopped from asserting its charitable-immunity defense in that it led him to believe throughout the course of the case that it only intended to claim charitable immunity from damages exceeding its insurance-policy limits. He contends that this court’s decision in Low v. Insurance Co. of North America, supra, should be applied prospectively and that his case should proceed under this court’s prior decisions of Clayborn v. Bankers Standard Insurance Co., 348 Ark. 557, 75 S.W.3d 174 (2002), and Scamardo v. Jaggers, 356 Ark. 236, 149 S.W.3d 311 (2004). Finally, he urges that if all other arguments fail, this court should remand the case for discovery as to whether Rebsamen is a charity.
Rebsamen urges that a reading of its pleadings demonstrates that it consistently pled charitable immunity and that, had Felton acted in a diligent manner in refiling his action against Medical Assurance, this matter would not be on appeal. With respect to its answer to the first amended complaint, Rebsamen maintains that it affirmatively asserted charitable immunity, not only incorporating its previous answer, including affirmative defenses, but separately identifying “charitable immunity.” Regarding estoppel, Rebsamen contends that its actions have been neither wrongful nor misleading. It further asserts that it did not take inconsistent positions. As to Low, Rebsamen avers that the circuit court’s finding that it applied retroactively was proper. Finally, it argues that the circuit court did not abuse its discretion in denying Felton additional time in which to conduct discovery.
The law is well settled that summary judgment is to be granted by a circuit court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. See Stromwall v. Van Hoose, 371 Ark. 267, 265 S.W.3d 83 (2007). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. See 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. See id. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. See id. Our review focuses not only on the pleadings, but also on the affidavits and documents filed by the parties. See id.
As already stated, at issue here is whether the circuit court erred in granting Rebsamen summary judgment. It did not. Following this court’s decision in Low v. Insurance Co. of North America, supra, Rebsamen, as a charitable organization, was immune and no longer subject to suit. Because Rebsamen affirmatively pled the defense of charitable immunity, there was no error by the circuit court.
A review of Rebsamen’s pleadings reveals that Rebsamen affirmatively pled its charitable-immunity defense. In its answer to Felton’s original complaint, Rebsamen stated:
4.
Defendant admits that Medical Assurance Company, Inc., has provided liability insurance coverage for Rebsamen at certain times.
Defendant further admits that it is entitled to immunity from damages exceeding its insurance policy limits based on its status as a charitable institution. Defendant denies each and every remaining allegation contained in paragraph 4 of the complaint.
18.
Pleading affirmatively, defendant states that Rebsamen Medical Center is a charitable institution and is entided to immunity from any damages beyond its insurance policy limits.
Rule 8(c) of the Arkansas Rules of Civil Procedure provides:
(c) Affirmative Defenses. In responding to a complaint, counterclaim, cross-claim or third party claim, a party shall set forth affirmatively accord and satisfaction, arbitration and award, comparative fault, discharge in bankruptcy, duress, estoppel, exclusiveness of remedy under workmen’s compensation law, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, set-off, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.
Ark. R. Civ. P. 8(c) (2007). While it does not appear that we have previously addressed whether charitable immunity is an affirmative defense, other states have so held. See, e.g., Isaacson v. Husson College, 297 A.2d 98 (Me. 1972); Grueninger v. President & Fellows of Harvard College, 343 Mass. 338, 178 N.E.2d 917 (1961). We agree and hold that charitable immunity is an affirmative defense, falling into the catch-all provision of Rule 8(c), as it is “any other matter constituting an avoidance or affirmative defense.” Ark. R. Civ. P. 8(c).
We have held that defenses under Rule 8(c) must be specifically pled to be considered by the circuit court. See State Office of Child Support Enforcement v. Morgan, 364 Ark. 358, 219 S.W.3d 175 (2005). A failure to plead an affirmative defense can result in a waiver and exclusion of the defense from the case. See 71 C.J.S. Pleading § 161 (2008). See also 61A Am. Jur. 2d Pleading § 291 (2008); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1278 (3d ed. Supp. 2008). Here, Rebsamen clearly pled the defense of charitable immunity.
While Felton urged in his briefs and at oral arguments that Rebsamen should have amended its answer following our decision in Low and pled the defense in accord with the law stemming from that decision, his argument is without merit. A charitable defendant is entitled to its charitable-immunity defense no matter how that defense is defined by law, so long as the charitable defendant affirmatively pled the defense. In the instant case, it is clear that Rebsamen affirmatively pled the defense of charitable immunity, thus, it was entitled to its defense both before and after our Low decision.
Nor are Felton’s arguments regarding estoppel and inconsistent positions valid. The elements of estoppel include:(1) the party to be estopped knew the facts; (2) the party to be estopped intended that the conduct be acted on; (3) the party asserting the estoppel was ignorant of the facts; and (4) the party asserting the estoppel relied on the other’s conduct and was injured by that reliance. See Southern Farm Bur. Cas. Ins. Co. v. Tallant, 362 Ark. 17, 207 S.W.3d 468 (2005). These elements are simply not met in the instant case, where Rebsamen affirmatively and specifically pled the doctrine of charitable immunity, thereby placing Felton on notice of its defense. Moreover, no inconsistent position was taken by Rebsamen, as it has always maintained, since the filing of its initial answer, that it was a charitable organization entitled to immunity.
We further decline Felton’s invitation to prospectively apply our decision in Low v. Insurance Co. of North America, supra. First and foremost, we have long held that our decisions are applied retrospectively — a decision of the court, when overruled, stands as though it had never been. See Flemens v. Harris, 323 Ark. 421, 915 S.W.2d 685 (1996); Baker v. Milam, 321 Ark. 234, 900 S.W.2d 209 (1995). In addition, we have previously applied our Low decision retroactively and held that its retroactive application did not result in any unfair prejudice to the appellant in that case. See Sowders v. St. Joseph’s Mercy Health Ctr., 368 Ark. 466, 247 S.W.3d 514 (2007). The same holds true in the instant case.
Here, the retroactive application of our decision in Low is neither unfair, nor prejudicial to Felton, as the decision in Low was delivered on December 15, 2005, prior to the expiration of Felton’s savings limitations period, which ran on February 20, 2006. While Felton claims that this court’s decisions have “whip sawed” him, a review of the record and this court’s jurisprudence reveals that not to be the case, where Felton had more than two months in which to refile his claims against Medical Assurance in accord with the law as stated in Low. Our decision in Low did not time bar Felton’s claims at all, and, therefore, we decline to apply Low prospectively.
As his final argument under his first point on appeal, Felton avers that we should remand the matter to the circuit court for discovery as to whether Rebsamen is indeed a charity because he was deprived of any opportunity to conduct discovery on the question. Felton fails to cite to any authority that would permit this court to remand the matter for further discovery. Without such authority, we decline to do so. See, e.g., Searcy Farm Supply, LLC v. Merchants & Planters Bank, 369 Ark. 487, 256 S.W.3d 496 (2007).
For all of these reasons, we affirm the circuit court’s grant of Rebsamen’s summary-judgment motion.
At issue in Felton’s second point on appeal is whether the circuit court erred in granting summary judgment to Medical Assurance. Felton argues that Medical Assurance waived any limitations defense against his claims because Medical Assurance and Rebsamen induced him to believe that his damages would be covered by liability insurance, conditioning Rebsamen’s affirmative defense of charitable immunity as applying only to damages beyond its insurance policy limits. He urges that even though Medical Assurance acknowledged the statute-of-limitations defense in its answer to the amended complaint, it did not fully assert the defense until it filed its summary-judgment motion, the delay of which induced him to believe that Medical Assurance would continue to provide insurance coverage to Rebsamen and that his damages would be covered. Finally, he claims that laches applies because Medical Assurance did not seek relief by way of its statute-of-limitations defense for approximately six months. Medical Assurance responds that it properly asserted the statute of limitations, averring that it did not waive the defense, nor should it be estopped from asserting it or be barred by the doctrine of laches.
We hold that the circuit court did not err in granting summary judgment to Medical Assurance. Just as was the case with Rebsamen, a review of the record reveals that Medical Assurance specifically, sufficiently, and timely pled its statute-of-limitations defense in its answer to the amended complaint. In its answer to the first amended complaint, in which Felton reasserted his claims against Medical Assurance, Medical Assurance stated:
9.
It affirmatively asserts the first amended complaint is barred by the statute of limitations.
As was the case with Rebsamen’s pleading of its charitable-immunity defense, we hold that Medical Assurance specifically pled, in accord with Ark. R. Civ. P. 8, its statute-of-limitations defense. While Felton claims that he was induced by Medical Assurance’s actions into failing to amend his complaint until July, his claim has no merit. Indeed, Medical Assurance had been nonsuited and was not even a party to the litigation until it was brought back in by Felton’s first amended complaint. Moreover, once Felton filed his first amended complaint, Medical Assurance clearly and affirmatively pled its statute-of-limitations defense in its answer to that complaint. Accordingly, Felton’s arguments regarding waiver and estoppel fail as they did above with Rebsamen.
Nor is Felton’s argument regarding laches successful. This court has summarized the laches defense by stating that it is based on the equitable principle that an unreasonable delay by the party seeking relief precludes recovery when the circumstances are such as to make it inequitable or unjust for the party to seek relief. See Royal Oaks Vista, L.L.C. v. Maddox, 372 Ark. 119, 271 S.W.3d 479 (2008). The laches defense requires a detrimental change in the position of the one asserting the doctrine, as well as an unreasonable delay by the one asserting his or her rights against whom laches is invoked. See id. Laches is simply inapplicable to the instant case, where Medical Assurance timely asserted its statute-of-limitations defense after being brought back into the litigation, and no unreasonable delay was present. For these reasons, the circuit court did not err in granting Medical Assurance’s motion for summary judgment. Accordingly, we affirm the circuit court’s orders of summary judgment.
Affirmed.
Glaze, J., concurs.
Hannah, C.J., and Brown and Imber, JJ., dissent.
While the complaint alleged that the decedent choked and died on January 12,2002, it is evident from the record and the briefs on appeal that the decedent died on January 12, 2003.
A brief recitation of this court’s jurisprudence involving the doctrine of charitable immunity may prove helpful. Prior to 2002, this court had held that charitable organizations were immune from execution on their property, and, thus, were immune from tort liability. See, e.g., Helton v. Sisters of Mercy of St. Joseph’s Hosp., 234 Ark. 76, 351 S.W.2d 129 (1961); Crossett Health Ctr. v. Croswell, 221 Ark. 874, 256 S.W.2d 548 (1953). In addition, we had held that where a charitable organization was not subject to an action in tort, its liability insurance carrier was subject to a direct action. See,eg., George v. Jefferson Hosp. Ass'n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999).
However, in 2002, in dicta, this court distinguished between a charitable organization’s immunity from suit and immunity from liability, based on a distinction made in the context of the acquired-immunity doctrine. See Clayborn v. Bankers Std. Ins. Co., 348 Ark. 557, 75 S.W.3d 174 (2002). We then reaffirmed this distinction in Scamardo v. Jaggers, 356 Ark. 236, 149 S.W.3d 311 (2004), and permitted the plaintiff in that case to sue a charitable organization; however, the plaintiff could not collect on any judgment because the charitable organization was immune from execution. Both Clayborn and Scamardo were overruled by this court in Low it Insurance Co. of North America, 364 Ark. 427, 220 S.W.3d 670 (2005), wherein we again held that plaintiffs could not bring suit against charitable organizations. In our recent decision of Sowders v. St. Joseph’s Mercy Health Center, 368 Ark. 466, 247 S.W.3d 514 (2007), we summarized the law since our decision in Low and as it now stands:
Plaintiffs alleging injury by charitable organizations can bring suit against the charities’ liability insurer via the direct-action statute, Ark. Code Ann. § 23-79-210. Further, injured plaintiffs may bring suit against employees of charitable organizations.
368 Ark. at 470, 247 S.W.3d at 517.
Accordingly, pursuant to the savings statute, Felton had until February 20,2006, in which to refile his claims against Medical Assurance. See Ark. Code Ann. § 16-56-126(a)(l) (Repl. 2005). Because February 18 fell on a Saturday, Felton had until the next business day, Monday, February 20, to refríe his claims. See Ark. R. Civ. P. 6 (2007).
Contrary to the dissent’s claim that prospective application of new case law is plain, our case law is in fact very clear that our decisions are applied retrospectively and that an overruled decision stands as though it had never been. Since 1886, and as recently as 1997, we have so held. See Looney v. Bolt, 330 Ark. 530, 955 S.W.2d 509 (1997); Taliafero v. Barnett, 47 Ark. 359, 1 S.W. 702 (1886). For that reason, Felton had no clear right to believe that our Low decision would be applied prospectively only.
In addition, while the dissent relies on our decisions in Aka v. Jefferson Hospital Ass’n, Inc., 344 Ark. 627, 42 S.W.3d 508 (2001), and Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968), superseded by statute, Act 165 of 1969, for the prospective application of Low, such reliance ignores the general rule of Taliafeto u Barnett, supra, and its progeny. In both Aka and Parrish, we deviated from this general rule of retroactive application and held as we did to provide Mr. Aka and the Parishes the benefit of their “industry, expense and effort ... for having given to this Court the opportunity to rid the body of our law of this unjust rule.” Parish, 244 Ark. at 1254, 429 S.W.2d at 52. Indeed, there are other exceptions. See also Hare v. General Contract Purchase Corp., 220 Ark. 601, 610, 249 S.W.2d 973, 978 (1952) (permitting a caveat, or deviation from the general rule, “so as not to entrench on property rights acquired by reason of our previous decisions”); S.R. Shapiro, Comment Note, Prospective or Retroactive Operation of Overruling Decision, 10 A.L.R.3d 1371, § 5[b] (1966) (recognizing another exception to the general rule of retroactive application “where the effect of such operation would be to overturn contract or property rights which had previously been acquired on the faith of the overruled case”).
However, none of those exceptions apply in the instant case. Unlike Mr. Aka and the Parishes, Felton has brought about no change in the law, nor did he have a vested property right in his wrongful-death claim. Instead of pursuing his claim in accordance with the law of Low, he simply seeks to avoid the application of the decision to his case in contravention of our general rule.
Recognizing this general rule, Felton relies on another exception to the general rule, that is, where required by equity or in the interest ofjustice. Felton argues that this is one such situation, and the dissent agrees, stating that the application of our Low decision to this case is unfair. Felton maintained m oral arguments that prospective application should occur where prejudice can be shown, but Felton has simply failed to demonstrate any prejudice in the instant case.
Application of our decision in Low is neither unfair nor prejudicial where Felton had plenty of time in which to amend his complaint in accord with Low. Moreover, counsel for Felton on appeal acknowledged in oral arguments that Felton was charged with knowledge of our decision in Low, stating “that there is no question that we are charged with that knowledge [of the change in the law], that we were to know that the case [Low] was handed down.” It is, therefore, rudimentary that the general rule of retrospective application applies to our decision in Low. | [
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Per Curiam.
Appellant Ross Lamar Burnett, Sr., was convicted of capital murder. This court affirmed the judgment. Burnett v. State, CR 02-336 (Ark. June 26, 2003) (per curiam). Appellant filed in the trial court a petition for postconviction relief under Ark. R. Crim. P. 37, which was denied. Following the denial of the Rule 37 petition, counsel for appellant, John W. Cone, presented a no-merit brief to this court and requested permission to withdraw as counsel. This court found that the brief and record submitted by Cone were deficient and inadequate for our review, Burnett v. State, CR 07-683 (Ark. Feb. 28, 2008) (per curiam). A writ of certiorari was issued and rebriefing was ordered.
John W. Cone has accepted an interim appointment as circuit judge for the Sixth Division of the Eleventh Judicial District, West, and he asks to be relieved as attorney of record in this case.We grant the motion to be relieved as attorney of record. Brent Standridge will be substituted as attorney of record in this matter. The clerk will establish a new briefing schedule. | [
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PER CURIAM.
Appellant Harvey Bond, Jr., by and through his attorney, Phillip A. McGough, has filed a motion for rule on clerk to file his record and have his appeal docketed. The clerk refused to accept the record. The record before us does not show strict compliance with Ark. R. App. P.-Civ. 5(b)(1)(C), as all parties have not had an opportunity to be heard on appellant’s motions to extend time for filing the transcript.
We have held that Rule 5(b)(1) applies to both civil and criminal cases for the determination of the timeliness of a record on appeal. See Roy v. State, 367 Ark. 178, 238 S.W.3d 117 (2006) (per curiam). Rule 5(b)(1) provides in pertinent part:
(1) If any party has designated stenographically reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period prescribed by subdivision (a) of this mle or a prior extension order, may extend the time for filing the record only if it makes the following findings:
(C) All parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing;
We have made it clear that there must be strict compliance with the requirements of Rule 5(b), and that we do not view the granting of an extension as a mere formality. See White v. State, 366 Ark. 295, 234 S.W.3d 882 (2006); Rackley v. State, 366 Ark. 232, 234 S.W.3d 314 (2006). We bring to your attention McGahey v. State, 372 Ark. 46, 269 S.W.3d 814 (2007), wherein this court explained that, upon a remand for compliance with Ark. R. App. P&emdash; Civ. 5(b)(1)(C), the circuit court shall determine whether the rule was complied with at the time the original motion for extension oj time was filed and granted. This court further stated that the circuit court should not permit the parties the opportunity to correct any deficiencies, but instead should make the findings required by the rule as if they were being made at the time of the original motion. Should the requirements not have been met at the time of the initial motion for extension and order, the circuit court’s order upon remand should so reflect and be returned to this court. As the record before us does not comply with this rule, we remand this case to the trial court for compliance with Rule 5(b)(1)(C).
Remanded. | [
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ANNABELLE CLINTON IMBER, Justice.
The State appeals from an order of the Pulaski County Circuit Court grant-
After being charged with multiple counts of theft of property, forgery, and fraudulent use of a credit card, Webb was convicted of one count of felony theft of property at a bench trial on November 14, 2006. She was sentenced to thirty-six months’ probation, and the judgment and disposition order stated that restitution would be determined at a later date. The order was marked with an “X” next to the statement “Defendant committed a target offense and was sentenced under the Community Punishment Act. Upon successful completion of the conditions of probation/S.I.S. Defendant shall be eligible to have his/her records sealed.” “Act 346” was handwritten in next to this statement. Act 346 of 1975, known as the First Offenders Act, is codified at Ark. Code Ann. §§ 16-93-301 to -305 (Repl. 2006 & Supp. 2007). An order of conditions of probation, pursuant to Act 346, set restitution at $2,500. The judgment and disposition order was subsequently amended to reflect the amount and method of distribution of restitution.
The circuit court then held a hearing on Webb’s motion to correct the judgment and modify the sentence. Webb’s counsel asked that the court modify or dismiss the sentence under Ark. Code Ann. § 5-4-306 (Repl. 2006) and expunge the record under Act 346. In response, the State argued that expungement under Act 346 is not available to defendants who are found guilty at trial. The State asked that the court reconsider sentencing Webb in accordance with Act 346. Plowever, the circuit court terminated Webb’s probation and ordered her record expunged. The court entered an order to seal pursuant to Act 346 on July 12, 2007. After Webb filed a petition to seal, the court entered a second order to seal on September 5, 2007. The State filed a notice of appeal on September 28, 2007, citing the September 5 order to seal as the order from which it appealed.
As a threshold matter, we must first determine whether this appeal is properly before us. Under Rule 3(c) of our Rules of Appellate Procedure — Criminal, appeals by the State are permitted if the attorney general, on inspecting the trial record, is satisfied that error has been committed to the prejudice of the State, and that the correct and uniform administration of the criminal law requires review by this court. Ark. R. App. P.-Crim. 3(c) (2007). Pursuant to Rule 3(c), we have stated that we will accept appeals by the State in criminal cases only when our holding would be important to the correct and uniform administration of the criminal law. State v. Aud, 351 Ark. 531, 95 S.W.3d 786 (2003). As a matter of practice, we have only taken appeals that are narrow in scope and involve the interpretation of law. Id. Appeals by the State are not allowed merely to demonstrate the fact that the trial court erred. Id. We have held that an appeal does not involve the correct and uniform administration of the law when it does not present an issue of interpretation of the criminal law with widespread ramifications. Id.
The State asserts that it need not satisfy the requirements of Rule 3(c) because the present appeal is civil in nature, notwithstanding its criminal designation. This argument is correct pursuant to our holding in State v. Burnett, 368 Ark. 625, 249 S.W.3d 141 (2007). There, the State appealed from an order sealing the appellee’s criminal record. Id. In support of its argument that it was not required to comply with Rule 3(c), the State contended that the appeal was a civil appeal arising from a collateral proceeding on a motion and order to seal a criminal record. Id. This court agreed and held that the State was not required to satisfy the rule. Id. In accordance with this holding, the State need not comply with Rule 3(c) in the instant case.
We must also consider Webb’s contention that the State has failed to file a timely notice of appeal. The State’s September 28 notice of appeal of the September 5 order to seal was timely, in accordance with Ark. R. App. P.-Crim. 3(b), which requires that the State file a notice of appeal within thirty days after entry of a final order by the trial judge. However, Webb asserts that the State is actually appealing the sentence itself, rather than the order of expungement. Webb contends that the September 28 notice of appeal would have been untimely if the appeal were taken from any of the three orders setting forth Webb’s sentence —■ the originaljudgment and disposition order, filed November 20, 2006; the order of conditions of probation, filed December 19, 2006; or the amended judgment and disposition order, filed February 1, 2007. See Ark. R. App. P. — Crim. 3(b).
In light of our prior case law, we need not address Webb’s timeliness argument. This court views an issue of a void or illegal sentence as being an issue of subject-matter jurisdiction, in that it cannot be waived by the parties and may be addressed for the first time on appeal. Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002); Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992). The State may raise at any time the issue of the illegality of a sentence. Renshaw v. Norris, 337 Ark. 494, 989 S.W.2d 515 (1999). Therefore, we conclude that the issue of a void or illegal sentence may be raised by the State following its timely appeal of the order of expungement.
In deciding whether the circuit court’s order of expungement pursuant to Act 346 was proper, we must determine whether the court’s sentencing of Webb pursuant to Act 346 was proper. We hold that it was not. Section 16-93-303 provides, in pertinent part:
Whenever an accused enters a plea of guilty or nolo contendere prior to an adjudication of guilt, the judge of the circuit or district court, in the case of a defendant who has not been previously convicted of a felony, without making a finding of guilt or entering a judgment of guilt and with the consent of the defendant may defer further proceedings and place the defendant on probation for a period of not less than one (1) year, under such terms and conditions as may be set by the court.
Ark. Code Ann. § 16-93-303 (a)(1) (A) (i) (Repl. 2006). Thereafter, upon violation of a term or condition, the court may enter an adjudication of guilt. Ark. Code Ann. § 16-93-303 (a) (2). Otherwise, upon fulfillment of the terms and conditions of probation, or upon release by the court prior to the termination of the period of probation, the defendant is to be discharged without court adjudication of guilt. Ark. Code Ann. § 16-93-303(b). At that point, the court “shall enter an appropriate order that shall effectively dismiss the case, discharge the defendant, and expunge the record, if consistent with the procedures established in § 16-90-901 et seq.” Id.
The record reveals that Webb did not plead guilty or nolo contendere prior to an adjudication of guilt, as required by the statute for eligibility under Act 346. Instead, she entered a plea of not guilty and was adjudicated guilty by the court following a bench trial. Therefore, she was ineligible for sentencing pursuant to Act 346. Our prior case law has emphasized the requirement of a plea of guilty or nolo contendere for Act 346 sentencing. See Baker v. State, 310 Ark. 485, 489, 837 S.W.2d 471, 473 (1992) (where appellant was adjudged guilty by a jury, trial court correctly determined that he was not entitled to probation under Act 346, which “applies only to an accused who ‘enters a plea of guilty or nolo contendere prior to an adjudication of guilt.’ ”). Under our de novo standard of review and plain-meaning rule for cases involving statutory interpretation, see Crawford v. State, 362 Ark. 301, 208 S.W.3d 146 (2005), the circuit court’s sentencing of Webb in accordance with Act 346 was improper.
In Thomas v. State, supra, we modified part of a judgment sentencing the appellant under Act 346, holding that he was not eligible for Act 346 sentencing because he was convicted of the crime of sexual solicitation of a child, a disqualifying sexual offense. See Ark. Code Ann. § 16-93-303(a)(l)(B). We cited the well-settled rule that a sentence is void or illegal when the trial court lacks authority to impose it. Thomas v. State, supra; see also Flowers v. Norris, 347 Ark. 760, 68 S.W.3d 289 (2002); Bangs v. State, supra. Because the trial court lacked the authority to sentence Thomas under Act 346, our court declared that portion of the sentence illegal. Thomas v. State, supra. Similarly, the circuit court in the case at bar lacked the authority to sentence Webb pursuant to Act 346, as she did not enter a plea of guilty or nolo contendere. Her sentence, to the extent that it is pursuant to Act 346, is void.
The remedy for an illegal sentence is not dismissal of the proceedings. Bangs v. State, supra. Rather, the general rule is that if the original sentence is illegal, even though partially executed, the sentencing court may correct it. Id.; see also Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985). Therefore, we reverse Webb’s sentence to the extent that it is in accordance with Act 346 and remand for new sentencing. We also reverse the circuit court’s order of expungement. Webb is not eligible for probation under Act 346 and is therefore not entitled to the expungement provisions therein.
Reversed and remanded.
This motion is not in the record.
Pursuant to Ark. Code Ann. § 16-90-905(a) (Repl. 2006), the uniform petition and order to seal adopted and provided by the Arkansas Crime Information Center must be used for the order to be effective. This explains the court’s reason for entering a second order to seal, following the filing of the petition.
In Thomas, we corrected the illegality by modifying that part of the judgment showing that Thomas was sentenced pursuant to Act 346. Thomas v. State, supra. We then affirmed the sentence as modified, pursuant to our rule that a trial court’s error in sentencing may be corrected in lieu of reversing and remanding. Renshaw v. Norris, supra; Bangs v. State, supra. In the instant case, however, we decline to correct the illegality and affirm as modified, because we are unable to determine from the record whether the sentence was otherwise correct. | [
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ROBERT L. BROWN, Justice.
By certification memorandum dated February 20, 2008, the Arkansas Court of Appeals certified the question of whether there was a final order in this case under Arkansas Rule of Appellate Procedure &emdash; Civil 2(d), Arkansas Supreme Court Rule 6-9, and Harwell- Williams v. Arkansas Department of Human Services, 368 Ark. 183, 243 S.W.3d 898 (2006). We hold that there was a final order for appeal purposes in this case, and we remand to the court of appeals for further action.
On January 18, 2006, four juveniles, R.W. (then age 16), E.W. (then age 15), B.W. (then age 13), and C.W. (then age 8), were taken into protective custody by the Arkansas Department of Health and Human Services after receiving information that C.W. had been physically abused by his mother, Shannon West. Shannon West had struck C.W. between fifty and sixty times with what the child referred to as a “wisdom whacker,” a one-inch thick rectangular strap of leather. Severe bruising covered the vast majority of C.W.’s buttocks. On January 23, 2006, DHHS filed a petition for emergency custody of the four juveniles with the Washington County Circuit Court and sought a determination that the juveniles were dependent-neglected. The circuit court granted the petition for emergency custody finding that there was probable cause to believe that the juveniles were dependent-neglected and that it would be contrary to the welfare of the juveniles to allow them to remain in Shannon’s custody.
On March 20, 2006, the circuit court entered an adjudication and disposition order finding that the juveniles were dependent-neglected and were at a substantial risk of harm. The circuit court specifically found that Shannon West subjected C.W. to “horrific injury by beating him” and that this physical abuse caused Shannon to be an “unfit mother to all of her children.” The circuit court ruled that all juveniles were to remain in DHHS custody.
Several permanency-planning and review orders were entered by the circuit court over the next year. In June of 2007, the circuit court entered a permanency-planning and review order granting permanent custody ofE.W. to Kim Nero, the biological mother of R.W. and E.W. The circuit court also stated in the order that the permanent goal for R.W., who had reached the age of majority and had graduated from high school, would be Another Planned Permanent Living Arrangement. The circuit court further ruled that the permanency plan goals for B.W. and C.W. would be reunification with their father, Curtis West, and that B. W. would begin a trial placement in Curtis West’s home on June 15, 2007. C.W. remained in the care of his foster parents.
On August 8, 2007, the circuit court held a permanency-planning hearing and subsequently entered an order granting permanent custody of B.W. and C.W. to Curtis West. The order also stated that the case was closed as to E.W., who had previously been placed in the permanent custody of Ms. Nero, as well as B.W. and C.W., but the circuit court retained jurisdiction over R.W. and scheduled a future review hearing on his behalf. Shannon West filed a timely notice of appeal from the circuit court’s permanency-planning order.
This case has been certified to this court from the court of appeals to resolve the question of whether the permanency-planning order granting permanent custody of B.W. and C.W. to Curtis West is a final, appealable order. It is well settled that this court will not address the merits of an appeal when the order appealed from is not a final, appealable order. See, e.g., Seay v. C.A.R. Transp. Brokerage Co., Inc., 366 Ark. 527, 237 S.W.3d 48 (2006).
Rule 2(d) of the Arkansas Rules of Appellate Procedure — Civil reads that “[a]ll final orders awarding custody are final appealable orders.” In Harwell-Williams v. Arkansas Department of Human Services, 368 Ark. 183, 243 S.W.3d 898 (2006), this court allowed the appellant to appeal from an order titled “Adjudication of Dependency-Neglect Permanency Planning Order.” That order, which dealt with two children only, granted permanent custody of one child to the children’s father and closed the case with regard to that child. It also stated that the objectives regarding the second child would be the termination of the appellant’s parental rights with the goal of adoption. The order specifically stated that the matter would be continued as to the second child, and a termination-of-parental-rights hearing was scheduled. Citing Rule 2(d) of the Arkansas Rules of Appellate Procedure — Civil, this court held that the appellant could appeal from the order though the case was closed only with regard to one child. See Harwell-Williams, supra.
The court of appeals certifies the question of whether Rule 2(d) is applicable in dependency-neglect cases and notes a potential conflict between Rule 2(d) and Rule 6-9 of the Arkansas Supreme Court Rules. The court also points out that the custody order in Harwell-Williams, supra, was entered before the effective date of Rule 6-9, which was July 1, 2006. Rule 6-9(a) provides:
Rule 6-9. Rule for appeals in dependency-neglect cases.
(a) Appealable Orders.
(1) The following orders may be appealed from dependency-neglect proceedings:
(A) adjudication order;
(B) disposition, review, and permanency planning order if the court directs entry of a final judgment as to one or more of the issues or parties based upon the express determination by the court supported by factual findings that there is no just reason for delay of an appeal, in accordance with Ark. R. Civ. P. Rule 54(b);
(C) termination of parental rights; and
(D) denial of right to appointed counsel pursuant to Ark. Code Ann. § 9-27-316(h).
It is readily apparent from its text that Rule 6-9 does not specifically refer to permanent custody orders in the context of a dependency-neglect case. Accordingly, there is no direct conflict between Rule 2(d) and Rule 6-9, as Rule 6-9 does not state that permanent custody orders are not final, appealable orders or that a Rule 54(b) certificate is necessary for a permanent custody order relative to one child to be appealable. Rule 2(d), on the other hand, specifically states that custody orders are final, appealable orders. See also Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002) (holding that Rule 2(d) permits an appeal from any order that is final as to the issue of custody, regardless of whether the order resolves all other issues).
In the order appealed from in this case, the circuit court specifically said that “[t]he case is closed as to [B.W.] and [C.W.]” because permanent custody was granted to Curtis West. We hold that Rule 2(d) applies to permanent custody orders in dependency-neglect cases, and, thus, Shannon West’s appeal from the order granting permanent custody ofB.W. and C.W. to Curtis West is a final, appealable order. We further hold that a Rule 54(b) certificate is not required under Rule 6-9 for an appeal of the permanent custody order regarding B.W. and C.W.
Having answered the certified question, we remand the case to the court of appeals for further action.
The Arkansas Department of Human Services became a separate department under Act 384 of 2007, effective July 1,2007.
The circuit court granted Kim Nero’s motion to intervene in the proceedings on October 24,2006. | [
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TOM GLAZE, Justice.
The State of Arkansas filed an information charging appellee Calvin Holden, a city councilman for West Helena, with two counts of theft of property on March 1, 2006. Six other defendants were charged with similar crimes; those cases are the subjects of the other six opinions handed down today. See State v. Richardson, 373 Ark. 1, 280 S.W.3d 20 (2008); State v. Ashwood, 373 Ark. 7, 280 S.W.3d 25 (2008); State v. Joshaway, 373 Ark. 9, 280 S.W.3d 26 (2008); State v. Weaver, 373 Ark. 10, 280 S.W.3d 27 (2008); State v. Lee, 373 Ark. 12, 280 S.W.3d 28 (2008); State v. Whitfield, 373 Ark. 36, 280 S.W.3d 29 (2008). The theft charges arose from Holden’s alleged acceptance of money designated as salary or bonus payments related to his service as a public official on behalf of West Helena. The State contended that those payments were illegal because they represented salary payments for times when Holden would no longer be in office.
Bench warrants, authorizing the arrest of Holden and signed by Phillips County Clerk Wanda McIntosh and Deputy Clerk Geneva Richardson, issued on March 1, 2006, and March 20, 2006. On December 4, 2006, Holden and his codefendants moved for dismissal of the charges against them on the grounds that the arrest warrant had been signed by a Deputy Clerk and that the subsequent arrest was therefore invalid. Following a hearing on March 26, 2007, the circuit court entered an order on June 12, 2007, finding that, while Ark. R. Crím. P. 7.1(c) authorizes a court clerk to sign a warrant, the rule does not “dispense with the requirement that warrants must be issued by a detached, neutral magistrate who makes an independent determination of probable cause.” Citing Lamb v. State, 23 Ark. App. 115, 743 S.W.2d 399 (1988), the court granted the defendant’s motion to dismiss and dismissed the charges with prejudice.
The State’s sole argument on appeal is that the circuit court erred in its interpretation of Lamb, supra, and in dismissing the charges against Holden for an allegedly defective arrest warrant. We agree.
In the Lamb case on which the circuit court relied, the defendant, Lamb, was arrested after police obtained a warrant from the deputy clerk of the Little Rock District Court. After Lamb was convicted, he appealed, arguing that the trial court had erred in denying his motion to suppress evidence that was seized as the result of an allegedly illegal arrest. At the suppression hearing, the deputy clerk testified that she issued the warrant herself, without communicating with the municipal judge, and without any indication from the investigating officers or the documents that the judge had any knowledge of the facts alleged. In addition, the clerk testified that she did not read the factual allegations of the affidavit before signing the warrant; that she only checked for the prosecutor’s signature, the charge, and the statute number; and that she issued warrants under these circumstances routinely, as a matter of policy. Lamb, 23 Ark. App. at 117-18, 743 S.W.2d at 400-01.
The court of appeals held that the trial court should have granted Lamb’s motion to suppress the evidence seized as a result of his arrest, concluding that the warrant was improvidently issued. Id. at 118, 743 S.W.2d at 401. Importantly, however, for purposes of the present case, the Lamb court did not hold that dismissal of the criminal charges was appropriate; indeed, such a result would have been contrary to our case law.
Our court has consistently held that, while an invalid arrest may call for the suppression of a confession or other evidence, it does not entitle a defendant to be discharged from responsibility for the offense. See Biggers v. State, 317 Ark. 414, 421, 878 S.W.2d 717, 720 (1994) (emphasis added); O’Riordan v. State, 281 Ark. 424, 665 S.W.2d 255 (1984); Singleton v. State, 256 Ark. 756, 510 S.W.2d 283 (1974); see also State v. Holcomb, 271 Ark. 619, 609 S.W.2d 78 (1980); State v. Block, 270 Ark. 671, 672, 606 S.W.2d 362, 362 (opining that it was “unthinkable that a person who has committed murder, for example, should go scot free just because an officer enters his home without an invitation and arrests him without a warrant”); State v. Fore, 46 Ark. App. at 30, 876 S.W.2d at 280 (citing above cases and others, and holding that an illegal arrest is not grounds for dismissal of criminal charges).
Thus, it is apparent that the trial court misinterpreted Lamb as permitting the dismissal of criminal charges following an allegedly illegal arrest, when that case and the others cited above stand only for the proposition that the proper remedy for an illegal arrest is suppression of any evidence seized as a result thereof. Accordingly, for the reasons set out both above and in State v. Richardson, supra, we reverse the trial court’s decision and remand for further proceedings. | [
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Jim Gunter, Justice.
This appeal arises from an order of the Washington County Circuit Court granting summary judgment in favor of Appellees George’s Farms, Inc.; George’s Processing, Inc. (collectively “George”); Simmons Foods, Inc.; Simmons Poultry Farms, Inc. (collectively “Simmons”); Peterson Farms, Inc. (“Peterson”); and Tyson Foods, Inc. (“Tyson”). The circuit court denied summary judgment in favor of Appellees Alpharma, Inc. and Alpharma Animal Health Co. (collectively “Alpharma”), and the case proceeded to trial. On appeal, Appellants Mary E. Green and Michael B. Green, individually and as parents, next friends, and natural guardians of Michael Green during his minority (collectively “the Greens”), and Michael Green individually (“Green”), argue that the circuit court erred in granting summary judgment to the poultry- company appellees (“the poultry producers”) and in limiting and excluding doctors’ testimony at trial. We reverse the circuit court’s grant of summary judgment and remand for trial as to thé poultry producers. We affirm the circuit court’s rulings on the exclusion of expert testimony.
Michael “Blu” Green, a lifelong resident of Prairie Grove, lived with his mother and father, Mary and Michael Green, Sr., in their family residence located about one block from the Prairie Grove schools where Green attended from 1991 to 2003. In the fall of 1999, Green was diagnosed with a rare form of leukemia known as chronic myelogenous leukemia. In April 2000, Green received a bone-marrow transplant in Seattle, Washington. Following a sixty-day hospital stay plus follow-up care in Seattle, Green administered his medication through a shunt with a direct line to his heart for two years. While in remission, he suffers permanent side effects, including cataracts, nail- and hair-growth problems, sterility, and an increased risk of skin cancers.
Since 1991, Appellee Alpharma has sold the animal-feed additive, 3-Nitro 20 (“3-Nitro”), which contains twenty-percent of the active ingredient, roxarsone, an organic arsenical compound. 3-Nitro is said to improve growth efficiency and to prevent certain intestinal diseases in chickens. The 3-Nitro label warns that it is poisonous, toxic, and the dust should not be inhaled.
The poultry producers have purchased and used 3-Nitro as an additive in their chicken feed over the past few decades. The arsenic contained in 3-Nitro then passes through the chickens into the litter. In the litter, the arsenic breaks down into a more toxic, inorganic arsenic. The poultry producers require their growers to clean out caked litter after each flock is removed. According to deposition testimony, the caked litter, which contains the inorganic arsenical compound, causes noxious odors and harbors viruses, bacteria, and fungi. As a part of their normal husbandry practices in raising chickens, the growers clean out the houses and spread the dry chicken litter as fertilizer on fields in and around Prairie Grove. According to the spreaders, as well as Prairie Grove residents, the spreading process caused dust clouds around Prairie Grove.
On December 16, 2003, the Greens and other named plaintiffs (“the plaintiffs”) filed a complaint against Alpharma, Cal-Maine Farms, Inc., Cargill, Inc., George, Peterson, Simmons, and Tyson, alleging that the arsenic-laden chicken litter, which was produced by their 3-Nitro-fed chickens, polluted the air surrounding Prairie Grove and infiltrated their homes, schools, and places of business, thereby causing Green’s leukemia and the other plaintiffs’ injuries. Specifically, the plaintiffs alleged that they had “been exposed to the byproducts of the poultry industry while living in Washington County, Arkansas, including but not limited to, chicken waste, known as litter, through the air, soil, and water,” and that “[s]uch exposures led and/or contributed to the plaintiffs injuries and damages,” including a high risk of cancer from the level of exposure to the chicken-litter pathogens, causing a “cancer cluster” in and around Prairie Grove. In their complaint, they alleged the following counts: (1) negligence, (2) negligence per se, (3) intentional failure to warn, concealment, and/or misconduct, and (4) strict liability/product liability. They sought injunctive relief, compensatory damages, and punitive damages.
Motions for summary judgment were filed by separate appellees. On January 25, 2006, Tyson filed a motion for summary judgment, arguing that there was no genuine issue of material fact as to the causation requirement or Tyson’s liability. Tyson further claimed that “[t]he medical conditions involved in this case [were] not the type of conditions for which the scientific community has recognized a causal connection with poultry litter and/or arsenic.” Tyson claimed that the plaintiffs’ exposure to the trace amounts of arsenic could not have proximately caused their injuries. Simmons filed a similar summary-judgment motion on January 30, 2006, claiming that the plaintiffs could not meet their burden of proof of causation against Simmons. On January 31, 2006, Peterson filed its separate motion for summary judgment and argued inter alia that the plaintiffs failed to produce evidence that their injuries were caused by the poultry-litter substances and that the plaintiffs admitted their inability to produce evidence that Peterson’s acts were the specific cause of injuries occurring prior to Peterson’s first poultry contract in Washington County in 2002. On February 2, 2006, George filed its motion for summary judgment, adopting Tyson’s argument set forth in Tyson’s motion for summary judgment.
The Greens and the other plaintiffs filed their separate responses to the poultry producers’ motions for summary judgment on February 17, 2006, claiming that there were remaining issues of fact relevant to Alpharma and the poultry producers’ liability. In support of their response, they offered sixty-one exhibits, which consisted of deposition testimony primarily from growers and spreaders in the area. Citing various depositions, the Greens claimed that George had used roxarsone since 1958; Peterson had used 3-Nitro since 1981; Simmons had used roxarsone since 1985; and Tyson admitted to using roxarsone since the 1970s. On August 2, 2006, the circuit court granted summary judgment in favor of the poultry producers and denied a motion for summary judgment filed by Alpharma.
On March 14, 2006, Alpharma and the poultry producers filed a Daubert motion to exclude the trial testimony of Dr. Rod O’Connor regarding the “alleged environmental conditions in the Prairie Grove area, the alleged contamination of certain properties with arsenic, the alleged source of the arsenic[,] and the alleged exposures of plaintiffs to arsenic in air or house dust.” On March 16, 2006, Alpharma and the poultry producers filed a motion to exclude the testimony of Dr. William Sawyer, particularly those opinions relating to his calculations of the plaintiffs’ arsenic ingestion, any corresponding cancer risks, and causation.
On April 4, 2006, the circuit court held a hearing on the issue of the Dr. O’Connor Daubert motion. On June 19, 2006, the court announced its Daubert rulings from the bench. In an order filed on August 2, 2006, the circuit court, in considering numerous motions in limine to exclude limited portions of opinions and testimony of Dr. Rod O’Connor, Dr. Sawyer, Dr. James Dahlgren, and Dr. Michael Wolfson, excluded both Table 9 and the opinions of Dr. O’Connor and any other expert regarding Table 9 of his August 25, 2005 report, which discussed the arsenic levels in the dust and air to which the plaintiffs were allegedly exposed. The circuit court also excluded the opinions of Dr. O’Connor and any other expert concerning the level of arsenic present in the Prairie Grove schools. The court reasoned that, in either instance, Dr. O’Connor’s methodology did not meet the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), Farm Bureau Mutual Insurance Co. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000), or Ark. R. Evid. 702 (2007). The court further excluded the expert opinions and testimony of Dr. Sawyer regarding the issues of Table 9 and the arsenic levels at the Prairie Grove schools. Finally, the circuit court excluded the opinion and testimony of Dr. Dahlgren and Dr. Wolfson with respect to Table 9, as well as the arsenic levels at the Prairie Grove schools.
On August 2, 2006, the circuit court held a hearing on the poultry producers’ separate motions for summary judgment. At the end of the hearing, the circuit court ruled:
The burden is on the plaintiff to prove that the exposure of the plaintiff to the product applied was a substantial factor applied by a specific defendant.... [Ujnfortunately for the plaintiffs in this case, Arkansas has not adopted the market share theory of liability, but has retained the traditional requirement of proximate cause to each defendant. I understand that’s a difficult proposition sometimes, but that still doesn’t mean that’s not what the law requires. As I read the law the best I can, each plaintiff must prove that each defendant’s product was a substantial factor in causing their particular disease.
[Tjhis court is bound by the law that requires that proof and exposure of a particular defendant’s litter be proven and not just speculated that, well, it must have been because they were the ones doing a lot of it by the school. Therefore, on that basis, concerning the poultry companies, this court is going to grant summary judgment on the poultry companies only, and it’s going to be denied as to the separate defendant, Alpharma, who was the supplier of the Roxarsone for many of the years. The plaintiff’s objection to my ruling as to the poultry companies will be noted, and also Alpharma’s objection to my ruling that their motion for summary judgment will be rejected as I said.
The circuit court granted the poultry producers’ motion for summary judgment and dismissed those parties from the case. The case proceeded to trial by jury in Washington County Circuit Court over the course of three weeks. On September 26, 2006, the jury found in favor of Alpharma, and the circuit court entered ajudgment reflecting the jury’s verdict on September 28, 2006.
The Greens filed a timely notice of appeal on October 13, 2006, and an amended notice of appeal on October 24, 2006. On February 8, 2007, the circuit court entered an amended judgment to reflect the Rule 54(b) certification. The Greens filed a third notice of appeal on March 9, 2007, appealing the circuit court’s September 28, 2006, and February 8, 2007, judgments. From these orders, the Greens bring the present appeal.
I. Summary judgment
For their first point on appeal, the Greens argue that the circuit court erred in granting summary judgment in favor of the poultry producers. Specifically, the Greens contend that the circuit court misapplied the doctrine of joint-and-several liability, which is the controlling legal standard for proximate cause in cases involving joint tortfeasors. Citing Chavers v. General Motors Corp., 349 Ark. 550, 79 S.W.3d 361 (2002), they assert that they produced ample evidence to meet the “frequency, regularity, and proximity” test to show exposure to chicken litter. They argue that “Blu Green met the burden of showing that each poultry defendant’s conduct constituted a substantial factor in causing his injuries by showing the frequency, regularity, and proximity of and to the exposure.”
In response, the poultry producers argue that the circuit court properly granted summary judgment to George, Peterson, Simmons, and Tyson. Specifically, they contend that the circuit court’s award of summary judgment should be affirmed based upon the Greens’ failure to demonstrate a question of material fact on the issue of proximate causation — that the constitution of the chicken litter was the proximate cause of Green’s injuries.
The issue then is whether the circuit court erred in granting summary judgment in favor of the poultry producers. 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. Bennett v. Spaight, 372 Ark.446, 277 S.W.3d 182 (2008). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. See 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. See id. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. See id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. See id.
A. The Chavers test and the applicable law
The Greens cite Chavers, supra, for the proposition that the circuit court erred in finding that they did not satisfy the “frequency, regularity, and proximity” test. In Chavers, an asbestos case, the widow of Chavers, a “shade tree” mechanic, filed a wrongful-death action against the manufacturers and distributors of asbestos-containing friction products. The decedent’s deposition testimony revealed that he had 'on-the-job exposure to asbestos four times before using the products at issue. We described the “frequency, regularity, and proximity” test as having its origins in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986), and stated:
There [in Lohrmann], the appellants appealed a district court’s grant of directed verdicts in favor of the manufacturers of asbestos-containing products. The appellants requested that the court adopt a rule that would find a jury question had been established as to whether that product contributed to the plaintiffs disease where the plaintiffs present any evidence that a company’s asbestos-containing product was at the workplace while the plaintiff was at the workplace. In declining to adopt such a broad standard, the Fourth Circuit noted that such a standard would be contrary to Maryland’s law on substantial causation. Instead, the court adopted the district court’s enunciated standard: “Whether a plaintiff could successfully get to the jury or defeat a motion for summary judgment under such a theory would depend upon the frequency of the use of the product and the regularity or extent of the plaintiff s employment in proximity thereto.” Id. at 1162. The Lohrmann court further noted that such a rule was in effect a de minimis rule in that a plaintiff is required to prove more than a casual or minimal contact with the product.
Chavers, 349 Ark. at 559-60, 79 S.W.3d at 367-68.
We further cited Jackson v. Anchor Packing Co., 994 F.2d 1295 (8th Cir.1993), where the Eighth Circuit Court of Appeals, in reviewing a grant of summary judgment, affirmed the district court and stated:
[Pjlaintiffs in Arkansas must introduce sufficient evidence to allow a jury to find that more likely than not their exposure to a particular defendant’s product was a substantial factor in producing their injuries____ Consequently, to survive a motion for summary judgment under Arkansas law, an asbestos plaintiff must show that the defendant’s asbestos products were used with sufficient frequency and regularity in locations from which asbestos fibers could have traveled to the plaintiff’s work areas that it is probable that the exposure to the defendant’s asbestos products caused the plaintiff s injuries.
Id. at 1303 (emphasis added). In Jackson, the Eighth Circuit determined that the plaintiffs expert’s affidavit regarding the asbestos exposure was conclusory and did not provide a basis for denying summary judgment. Chavers, 349 Ark. at 561, 79 S.W.3d at 368.
Citing these two cases, we adopted the Chavers test, often called the “frequency, regularity, and proximity” test, and stated:
Under this test, to survive a motion for summary judgment, Appellant was required to prove the following elements: (1) Mr. Chavers was exposed to a particular asbestos-containing product made by Appellees, (2) with sufficient frequency and regularity, (3) in proximity to where he actually worked, (4) such that it is probable that the exposure to Appellees’ products caused Mr. Chavers’s injuries.
Chavers, 349 Ark. at 562, 79 S.W.3d at 369 (citation omitted) (emphasis added). We held that the estate could not recover against two manufacturers because there was no evidence that the mechanic had used the products, and we further held that Chavers did not meet his burden of proof because there was insufficient evidence to satisfy the “frequency and regularity” requirement by his one-time exposure to the asbestos-containing product. Id. at 562-64, 79 S.W.3d at 369-70.
B. Analysis of the Chavers test
We now turn to the present case to determine whether the circuit court should have awarded summary judgment to the poultry producers. At the outset, we note that we adopted the Chavers test in an asbestos case, but we apply it to this toxic-tort case where the exposure involved a product other than asbestos. See, e.g., James v. Bessemer Processing Co., Inc., 714 A.2d 898 (N.J. 1998) (applying frequency, regularity, and proximity test to exposure to benzene). Under the Chavers test, the Greens were required’ to prove that: (1) Green was exposed to the arsenic-laced chicken litter spread by the poultry producers, (2) with sufficient frequency and regularity, (3) in proximity to where he actually worked (or, in this case, where he lived and went to school), (4) such that it is probable that the exposure to the arsenic-laced chicken litter caused Green’s injuries. We will analyze each Chavers element separately by reviewing only that proof which was properly before the circuit court at the summary-judgment phase of the litigation. We further note that, in meeting proof with proof, the Greens submitted to the circuit court sixty-one exhibits attached to their response to the poultry producers’ motions for summary judgment.
1. Exposure
Under the first prong of the Chavers test, the Greens were to provide evidence of Green’s exposure to the arsenic-laced chicken litter. Specifically, in opposition to the poultry producers’ motions for summary judgment, the Greens submitted the following affidavits and deposition testimony to support the exposure prong of the Chavers test. The Greens included the affidavit of Dr. Rod O’Connor in which he opined that “arsenic in Plaintiffs’ homes [including the Greens’ home] originating] from poultry operations is evidenced by the finding of roxarsone” and that ‘ ‘sufficient information has been obtained from poultry litter spreaders, landowners, growers, and persons in the area to establish a reasonable degree of scientific certainty that poultry litter from [Tyson, Simmons, George, and Peterson] was frequently and regularly applied, over a period of at least twenty years, at locations in such a manner as to. harmfully impact Plaintiffs.” Attached to the affidavit was a table of the sampled homes with peak arsenic concentrations in dusts above 10 parts per million (“ppm”). The Greens’ home included 66.9 ppm of arsenic found in the house dust. Les Childress produced as an exhibit certain studies performed in 1963, which revealed that a maximum dose of 50 ppm killed half a dog population in less than three days.
Additionally, Dr. Devraj Sharma, a scientist and engineer with thirty-four years of experience, demonstrated “proper scientific methods” of “how Plaintiffs in this matter were routinely and regularly exposed to arsenic from Roxarsone that was used and discharged by Defendants.” Specifically, Dr. Sharma “ established] facts concerning the longevity, durations, frequency and regularity of Plaintiffs’ exposures at locations that [were] in close proximity to areas where arsenic from Roxarsone was regularly discharged into the atmosphere by the practice of spreading of poultry-litter.” Dr. Sharma further established that “very significant quantities of poultry manure containing Roxarsone from poultry houses operated on behalf of [Tyson, George, Simmons, and Peterson] were generated in the vicinity of Prairie Grove, and applied to farm lands in the same vicinity.” In conclusion, Dr. Sharma claimed that he demonstrated the exposure of Green and other plaintiffs “to arsenic result from the poultry growing operations conducted by Defendants Tyson, Simmons, George’s and Peterson and by the poultry litter spreading operations conducted on their behalf in the vicinity of Prairie Grove at locations where Plaintiffs in this matter were regularly and frequently exposed.”
With regard to exposure, Tyson argues in its brief that (1) if defendants’ products were used in the general vicinity of a large area, then plaintiffs presence may be deemed as “insufficient evidence of exposure to withstand summary judgment”; and (2) expert testimony cannot contain “broad and conclusory allegations” or that testimony would be insufficient to raise a general issue of material fact. See McDonald v. Eubanks, 292 Ark. 533, 731 S.W.2d 769 (1987). Tyson’s argument fails to apply to the present case. Here, Dr. O’Connor’s testimony regarding the level of Green’s exposure was based upon his samplings, his exposure-reconstruction methodology, and his research of the appropriate literature. Dr. Sharma’s testimony was based upon his “scientific investigations of data,” reports, and “analyses of data.” We have held that the affidavit of an expert, introduced in response to a motion for summary judgment, demonstrates the existence of a material question of fact. Benton County v. Overland Dev. Co., Inc., 371 Ark. 559, 268 S.W.3d 885 (2007). These two affidavits have done precisely that.
Further, the Greens submitted numerous affidavits and deposition testimony of spreaders, property owners, teachers, and medical personnel that support these experts’ contentions that Green was exposed to the poultry producers’ chicken litter. That testimony, while discussed under the following analysis of the Chavers requirements, also applies to Green’s exposure as well. Unlike the appellant in Chavers, who was repeatedly exposed to asbestos-containing products in four previous jobs before his on-the-job exposure as a shade-tree mechanic, the Greens have submitted proof that Green was exposed to the poultry producers’ chicken litter on a long-term basis.
Additionally, in refuting the poultry producers’ evidence to support their motions for summary judgment, the Greens have countered by providing ample scientific and medical evidence suggesting there may be a causal link between the chicken litter, which contained the arsenic compound from the chicken feed, and Green’s injury. Specifically, the Greens submitted the affidavit of Dr. James Dahlgren, a board-certified internist with thirty-four years’ experience in toxicology. Dr. Dahlgren stated:
With reference to general causation, arsenic is a potent cancer promoter in adults and a complete carcinogen in the fetus (Waalkes 2004). There is no safe level of exposure to a carcinogen. The difference between a low dose of arsenic and a high dose is the amount of cancer it causes in the exposed population. The acute short-term exposure to arsenic overwhelms the body’s defense systems and there is resulting injury to the body. The arsenic leaves the body but only after the damage is done.
I analyzed the [Prairie Grove] childhood cancers for a time period 1998 to 2002, using strict statistical methods. This analysis confirms a significantly elevated incidence of cancer in children year after year. Based on the fact that we are seeing additional cases every few months indicates a continuing epidemic of childhood cancer in this community. The data supporting the conclusion of a significant excess of childhood cancer and that arsenic is the cause is rock solid. The defendants cannot deny the excess of cancer here. They cannot deny that the arsenic levels in the house dust are high.
Additionally, the Greens submitted the affidavit of Dr. William R. Sawyer, a board-certified toxicologist, in which he refuted the poultry producers’ claim that the arsenic levels were too insignificant to cause Green’s injury. In his affidavit, Dr. Sawyer alludes to numerous studies regarding the rates of arsenic-related exposures and malignancies and concluded:
The above studies which have revealed statistically significant residential arsenic related cancers and neurotoxicological effects are within a reasonable range of that encountered among the Prairie Grove residents impacted by Roxarsone-laced chicken litter spreading. I am certain to within a high degree of toxicological certainty that plaintiffs were exposed to excessive arsenic through household dust ingestion on a chronic and regular daily exposure basis. The arsenic doses sustained by the plaintiffs in this matter were within range of that demonstrated above to be associated to within the generally accepted 95th percent level of confidence to induce both cancer and non-cancer toxicological endpoints associated with arsenic.
Finally, the Greens submitted the affidavit of Dr. Michael A. Wolfson, who specifically discussed Green’s diagnosis “to rule out or exclude [alternate] causes of [Green’s] medical conditions/ diseases.” In his affidavit, Dr. Wolfson noted that “[t]he medical literature contains numerous studies detailing the causative links between inorganic arsenic exposure in humans and the development of lymphohemotopoietic diseases, including leukemia.” Dr. Wolfson concurred with Dr. Sawyer’s opinion “regarding these calculated cancer risk levels resulting from [Green’s] inorganic arsenic exposures from chicken litter.” Dr. Wolfson concluded “with a reasonable degree of medical certainty, that these exposures caused or substantially contributed to the development of [Green’s] CML [chronic myelogic leukemia].”
2. Frequency and regularity
Under the second prong in Chavers, the Greens were required to prove that Green was exposed to the chicken litter with “sufficient frequency and regularity.” Here, the Greens submitted evidence supporting the proposition that the poultry producers had used the arsenic compound in the chicken feed for a period of years. According to the deposition testimony of Les Childress, George used roxarsone since 1958 with a six-month exception in 2002 or 2003, but George withdrew it from the feed recipe in 2004. Kerry Kinyon testified that Peterson used 3-Nitro on and off since 1981. Gary Murphy testified that Simmons fed roxarsone, which it purchased from Alpharma, to its chickens for the thirteen- and-one-half years that he had been employed with Simmons. Tyson admitted in its answer to interrogatories that it first began using 3-Nitro in chicken feed as early as the 1970s.
Next, the Greens submitted numerous spreaders’ deposition testimony concerning the frequency and the regularity of the poultry producers’ poultry-litter spreading activities. Robert J. Lee, Jr., a grower and spreader for Tyson, testified in a deposition that he, his son, and other spreaders spread chicken litter on his property on the western side of Prairie Grove “once per year” for twenty-five to thirty years. Ron Reed, a property owner and a grower for Tyson, testified that he or Mike Traylor spread chicken litter on his 73-acre Prairie Grove farm at least once per year for twenty-five years. Clifford C. Brown, a local spreader who owns Charlie’s Spreading Service, testified that he spread litter “west and maybe a little bit north of Prairie Grove” at least once or twice per year for approximately fifteen or sixteen years. Brown further testified that he spread for growers working for George, Simmons, and Tyson. Mike Traylor, the owner of a spreading, shaving, and poultry-bedding business, testified that most farmers for whom he worked, including those individuals contracting with George, Peterson, Simmons, and Tyson, spread once or twice a year since 1977 when he began his business. Traylor added that, three or four years prior to the litigation when a “litter management plan'” was established, he spread chicken litter on grass fields within five miles of the chicken houses in the Prairie Grove area. James Cooksey admitted in his deposition testimony that he had spread litter once or twice per year over the past fifteen to twenty years. Cooksey testified that he had spread for Tyson, Peterson, George, and Simmons in the Prairie Grove area. According to an annual spreader record attached to Dr. Sharma’s affidavit, spreaders dumped up to 1712 loads of chicken litter per year between 1979 to 1999.
Peterson argues that it could not have contributed to the exposure because it had no contractual relationship with any independent poultry grower in Washington County until March 2002. However, Traylor testified in his deposition that he brought litter from Decatur, Gentry, and Gravette and spread it in the Prairie Grove area. He admitted that this included litter from Peterson Farms.
Further, the Greens also established that there was frequent- and-regular spreading around the Prairie Grove school. Gary Stearman testified that he contracted to have litter spread on his properties around the school in Prairie Grove from the late 1970s “until now.” Cooksey testified that he spread chicken litter for Stearman for the past fifteen to twenty years. A Prairie Grove teacher, Kaci Crews, testified that she remembered spreader trucks spreading litter in the fields close to the school “[a]t least once a month between 1994 and 1999.”
3. Proximity
Under the third prong in Chavers, the Greens were required to prove that the chicken litter was in proximity to work. The Chavers test, which was developed in cases involving plaintiffs’ on-the-job exposure to asbestos products, originated in Lohrmann, supra, a workers’ compensation case involving asbestos products, and was later implemented in Jackson, supra, another asbestos-exposure case. Similarly, in Chavers, we applied the test to Chavers’s exposure to asbestos-containing products at work. However, in this case, the plaintiff was not exposed to the chicken litter at work, but rather, he was exposed at home and at school. Thus, because of Green’s age during his exposure, we extend the applicability of the proximity prong to Green’s exposure to the product while at home or at school.
Here, certain landowners and spreaders testified that they spread the chicken litter near the Prairie Grove school, which was located one block from the Greens’ home. In his deposition testimony, Stearman stated that he owned property around Prairie Grove schools, and he paid to have litter spread on his property for twenty to twenty-five years. Traylor testified that he spread approximately two to three tons of chicken litter per acre on the Stearman property each year for a period of years. Cooksey testified that he spread litter on the Stearman property around the school for years. Traylor, who also spread on the Stearman property, stated, “I can’t say that I’ve spread Tyson litter any more than Peterson’s or Simmons or anybody else. I mean, it just depends on the area.” Randy West, a grower and spreader, stated that he had been spreading chicken litter for approximately twenty-nine years on his property adjacent to the school.
Additionally, the Greens submitted deposition testimony from the teachers of Prairie Grove. Stacy Ferguson, who taught in Prairie Grove from 1994 to 1997, and Crews, who taught between 1994 to 1999, swore in an affidavit that they witnessed spreader trucks, which produced dust clouds near the school. Ferguson stated that, on the days of spreading, the children did not go outside for recess because the odor was so bad. Another teacher, Elizabeth Smith, stated that “you could hardly breathe at recess” because the smell was so bad. Crews stated that, because there was no air conditioning at the school and the doors were left open for ventilation, there was a “hazy cloud of dust and chicken feathers in the hallways of the school” while the chicken litter was spread in nearby fields. Green attended the Prairie Grove schools from 1991 to 2003.
4. Causation
Based upon our analysis of the Chavers test, we conclude that, in meeting proof with proof, the Greens submitted sufficient evidence to satisfy the Chavers requirements of (1) exposure, (2) frequency and regularity, (3) proximity, and (4) causation. In Chavers, we cited with approval the Lohrmann test on which the Chavers test is based, noting that the Chavers test itself “establishes] causation.” Chavers, 349 Ark. at 561, 79 S.W.3d at 368. As such, this fourth element considers the application of the first three elements in deciding whether a causal connection exists between Green’s exposure and his injuries. Our case law is replete with the proposition that causation is almost always a question of fact for the jury and not appropriate for summary judgment. See Se. Distrib. Co. v. Miller Brewing Co., 366 Ark. 560, 237 S.W.3d 63 (2006); Miller Brewing Co. v. Ed Roleson, Jr., Inc., 365 Ark. 38, 223 S.W.3d 806 (2006); Coca-Cola Bottling Co. v. Gill, 352 Ark. 240, 100 S.W.3d 715 (2003); Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002).
Plere, the Greens submit that 3-Nitro containing an arsenic compound was toxic, and provide deposition testimony that there is no safe level of exposure. The Greens have provided testimony that the 3-Nitro had been used by Tyson, George, Peterson, and Simmons as frequently as monthly over many years. Further, the Greens have shown that litter from poultry houses operated on behalf of the poultry producers was spread on property around the schools, leaving dust in the Greens’ home and clouds of dust and chicken feathers in the hallways of the school. Viewing the first three prongs of the Chavers test in the light most favorable to the Greens, we conclude that the Greens have satisfied the fourth prong by showing that the poultry-producers’ chicken litter probably caused Green’s injury.
5. Conclusion
In conclusion, we hold that the circuit court erred in granting summary judgment. While the circuit court correctly announced the factors of the Chavers test, the circuit court failed to apply that test to the case subjudice either in its bench ruling or its order. In our review of the circuit court’s grant of summary judgment, we note that summary judgment is not designed for assessing the probative strength of conflicting proof or expert opinions. Rather, that process is correctly done by the trier of fact after a trial on the merits. In applying the Chavers test, we hold that the Greens have demonstrated that there is a genuine issue of material fact on the issue of causation. Accordingly, we reverse the circuit court’s grant of summary judgment in favor of the poultry producers and remand the case for trial.
II. Expert testimony at trial
For their second point on appeal, the Greens argue that the circuit court abused its discretion by limiting Dr. O’Connor’s testimony and excluding essential facts supporting his opinions. Specifically, the Greens contend that the circuit court abused its discretion in excluding Table 9 of Dr. O’Connor’s report, “Exposures to Carcinogenic Arsenicals and Other Toxic Substances in Washington County, Arkansas” and any testimony concerning Table 9.
Alpharma responds, arguing that the circuit court did not abuse its discretion in limiting Dr. O’Connor’s testimony and excluding Table 9. Specifically, it asserts that the circuit court properly applied the admissibility factors set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Farm Bureau Mutual Insurance Co. of Arkansas, Inc. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000), to Dr. O’Connor’s methodology in constructing Table 9 and in excluding Table 9 and any testimony or opinions concerning or relying on it.
A. Standard of review
The Greens contend that we should review the exclusion of expert testimony under a de novo standard, while Alpharma asserts that an adoption of a de novo standard for evidentiary rulings, including the admissibility of expert testimony, would result in a significant break with well-established, longstanding precedent in Arkansas law. Our case law clearly states that we review the admission of expert testimony under an abuse-of-discretion standard. Crowell v. Barker, 369 Ark. 428, 255 S.W.3d 858 (2007) (citing Collins v. Hinton, 327 Ark. 159, 937 S.W.2d 164 (1997)). In discussing our standard of review for evidentiary rulings, we have said that circuit courts have broad discretion and that a circuit court’s ruling on the admissibility of evidence will not be reversed absent an abuse of that discretion. Advanced Envtl. Recycling Techs., Inc. v. Advanced Control Solutions, Inc., 372 Ark. 286, 275 S.W.3d 162 (2008).
The Greens rely on the United States Court of Appeals, Eighth Circuit decision in United States v. Blue Bird, 372 F.3d 989 (2004), which states:
There is some confusion in our cases on the proper standard of review with respect to evidentiary issues. We have sometimes said that in reviewing a district court’s admission of evidence we review for an abuse of discretion. See, e.g., United States v. Salcedo, 360 F.3d 807, 809 (8th Cir. 2004). Strictly speaking, however, this is not correct. Some rales require a balancing of how particular evidence might affect the jury, and we properly accord deference to the trial judge on such questions. See, e.g, Fed. R. Evid. 403. But a district court’s interpretation and application of most rules of evidence are matters of law. Of course, an error of law can always be characterized as “an abuse of discretion,” United States v. Weiland, 284 F.3d 878, 882 (8th Cir. 2002),but our review in cases like the present one is more accurately characterized as de novo.
Id. at 991. However, this holding was implicitly overruled by United States v. Pirani, 406 F.3d 543, 555 (8th Cir. 2005). “Piran!s holding on this issue implicitly overruled our holding in United States v. Blue Bird, 372 F.3d 989, 991 (8th Cir. 2004), that we review de novo a district court’s admission of evidence.” Harris v. Chand, 506 F.3d 1135, 1139 n.2 (8th Cir. 2007) (citing United States v. Chase, 451 F.3d 474, 479 n.3 (8th Cir. 2006)). Further, the United States Supreme Court has held that abuse of discretion is the proper standard by which to review a district court’s decision to admit or exclude scientific evidence. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). In Joiner, the Court held that in applying an overly “stringent” standard, the Eleventh Circuit failed to give the trial court the deference that is the hallmark of abuse-of-discretion review. Id. at 143. Therefore, following the well-established case law, we will review the exclusion of expert testimony under an abuse-of-discretion standard.
B. Dr. O’Connor
Arkansas Rule of Evidence 702, which governs expert testimony, states that if “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” In Daubert, supra, the United States Supreme Court held that the test established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), providing that “expert opinion based on a scientific technique is inadmissible unless the technique is ‘generally accepted’ as reliable in the relevant scientific community,” 509 U.S. at 584, had been super-ceded by the Federal Rules ofEvidence. The Court established the following inquiry to be conducted by the trial court:
Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.
Id. at 592-93; see also Foote, supra. In Foote, we adopted the United States Supreme Court’s interpretation of Federal Rule of Evidence 702 in Daubert, stating:
The Court concluded that a key consideration is whether the scientific theory or technique can be or has been tested. Other considerations include whether the theory or technique has been subjected to peer review and publication, the potential rate of error, and the existence and maintenance of standards controlling the technique’s operation. Additionally, the Court recognized that general acceptance in the scientific community can have a bearing on the inquiry. The Court emphasized that the inquiry envisioned by Federal Rule of Evidence 702, which is identical to our Rule 702, is a flexible one: Its overarching subject is the scientific validity-and thus the evidentiary relevance and reliability-of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.
Foote, 341 Ark. at 116, 14 S.W.3d at 519. Under Foote and Daubert, the trial court must make a preliminary assessment of whether the reasoning or methodology underlying expert testimony is valid and whether the reasoning and methodology used by the expert has been properly applied to the facts in the case. See Miller Brewing Co. v. Roleson,Jr., Inc., 365 Ark. 38, 223 S.W.3d 806 (2006) (citing Coca-Cola Bottling Co. v. Gill, 352 Ark. 240, 100 S.W.3d 715 (2003)).
In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the United States Supreme Court set out the objective of Daubert’s gatekeeping requirement, stating:
The objective of that requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. Nor do we deny that, as stated in Daubert, the particular questions that it mentioned will often be appropriate for use in determining the reliability of challenged expert testimony. Rather, we conclude that the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. That is to say, a trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony.
Id. at 152.
Turning to the present case, the circuit court found in its August 2, 2006 order that “Dr. O’Connor’s methodology in arriving at each of these opinions does not meet the Daubert, Foote, or Rule 702 standards for the reasons set forth during the July 19, 2006 ruling and in Defendants’ motions and supporting briefs.” In its July 19, 2006, ruling, the circuit court analyzed Table 9 under the five Daubert factors, stating:
The formula that he uses, this court has no faith in the validity of those numbers. And it’s not been peer-reviewed. When you look at the test that we’re supposed to apply to this testimony, has this theory ever been tested? No. Can it be? I guess it could by other scientists. Has it been subjected to peer review? No. The potential error rate, we have no idea. That has not been shown. The existence in maintenance of standards controlling the technique’s operation, I guess arguably that may have been met, although there’s been severe criticism of the manner in which these samples were taken. There was severe criticism of the fact that when they got a zero reading, they just threw those out instead of putting them in to average out in this formula. That’s been severely criticized.
And, number five, whether the scientific community has generally accepted this formula. And it has not. This formula, or one very similar to it, in fact, he got it from lead, from analyzing lead data. And, in fact, I read in the literature that accompanied it said don’t use this for other metals. Well, what does Dr. O’Connor do? He uses it for arsenic, when it’s got a warning on there, don’t use it for any other metals. But, the bottom line is that he cannot pass-the plaintiffs have not shown to this court that this table from Dr. O’Connor has any validity. It’s not shown to this court to be reliable. The methodology is not shown to be valid, and the reasoning is not shown to this court to be valid, and, therefore, this court’s going to exclude Table 9, as prepared by Dr. O’Connor, and also any other testimony by experts that uses Table 9 to come up with their figure.
The Greens contend that Dr. O’Connor is a well-qualified expert in this area based on his knowledge, skill, experience, training, and education pursuant to Ark. R. Evid. 702. However, Rule 702 does not condition the admissibility of an expert’s testimony solely on the expert’s professional accolades or lack thereof. See Coca-Cola, supra. Here, the circuit court found that Dr. O’Connor was well-credentialed and qualified. The circuit court ruled that he was only prohibited from testifying about Table 9 and from testifying that the dust he found in homes was dust found in Prairie Grove schools. Our inquiry as to whether his testimony should have been admitted does not rest solely on the issue of whether Dr. O’Connor was well-qualified. The issue here is whether the circuit court abused its discretion in finding that Dr. O’Connor’s methodology did not meet the Daubert and Foote standards for the admissibility of expert testimony.
A primary factor for a trial court to consider in determining the admissibility of scientific evidence is whether the scientific theory can be or has been tested. Ridling v. State, 360 Ark. 424, 442, 203 S.W.3d 63, 75 (2005). Here, Dr. O’Connor used the formula D = c0 + cx A to reconstruct the amount of arsenic in the air based upon the dust level measurements of the homes in Prairie Grove. According to his August 25, 2005 report, “D” is the dust arsenic concentration estimated as deposited from the air; “c0” is the initial site-specific dust arsenic concentration; “c/’ is a conversion factor; and “A” is the average air arsenic concentration during the period of dust deposition.
Dr. O’Connor’s results and opinions on these arsenic levels were reflected in Table 9 of his report. Dr. O’Connor testified in his deposition that the formula he used to arrive at these results came from the California EPA, which was using the formula to find new sources of lead. Dr. O’Connor took this formula for lead and applied it to arsenic. He testified that he did not know .whether anyone had ever before applied this formula to calculate arsenic levels. It was later revealed that this formula actually came from the national USEPA’s 1989 review of the EPA document entitled “Review of the National Ambient Air Quality Standards for Lead: Exposure Analysis Methodology and Validation.”
The circuit court made the following findings regarding the variables used in Dr. O’Connor’s formula:
He recalculates, or reconstructs, how much air — arsenic is going to be in the air based on the dust samples. But he also took air samples and chose not to use those. Instead he’s going to use a formula to reconstruct it. Now, that doesn’t make much sense to the court, to start with. But when we look at the formula, which is D equals Co plus Cl times A, that’s his formula. The Cl is the conversion factor. Well, he testified as an expert in a Gilmer,Texas case, and in that case the conversion factor was .35. In our case, he testifies the conversion factor is 8. And I haven’t really heard a satisfactory explanation as to why there’s such a huge difference between those conversion factor numbers other than he’s testified that, well, he was wrong in the Gilmer, Texas case, that the .35 was an error so he was testifying erroneously in that case because he says, no, the 8 is the right number in this case. That causes this court some great concerns how he flip-flops around between those two numbers.
He testifies the Co is 3.6, which came from this court after hearing arguments and testimony, actually of Dr. O’Connor, not to be plugged into some formula, just kind of a-you all were arguing about the background rate of arsenic. And that’s a number that he didn’t test for background, he didn’t use-there’s some figures qut there from EPA or somebody as to what, maybe, the Fayetteville background is. I’m not sure if it’s Northwest Arkansas background or Region 5 background. Anyway, he just kind of picks that number out of the air that came from this court.
His number for the A is .45 nanograms per cubic meter, right. That’s not a measured number. He’s testified that he’s never used it before, he’s never seen another scientist that’s ever used that number support, that he has no support in the literature, it’s not been peer-reviewed, and I think he admits all those things in his deposition.
As pointed out by the circuit court, Dr. O’Connor admitted in his deposition that he used a conversion factor of 8 in the present case and a conversion factor of .35 in a case in Gilmer, Texas. See Abron v. Dean Lumber Co., No. 2:99-CV-0197-TH (E.D. Tex. Feb. 7, 2003). When asked whether the difference in these conversion factors caused him any pause as to the reliability of his methodology, Dr. O’Connor stated, “Yes, I think maybe. If I were going back to the Gilmer case, I would want to reaccumulate those because I did that one on a straight proportional basis based on some Texas air data ... I probably have an error by maybe a factor of 10 or more in the Gilmer data.” He also testified, “I think I made an error in the methodology in Gilmer, Texas, because I didn’t do it-I did not do it by calculating the slope.”
Dr. O’Connor further testified that variable “A,” which he values at 0.45 ng/m3, is the average air arsenic concentration on typical days that are unaffected by poultry litter spreading events. Dr. O’Connor used 0.45 ng/m3 as a mathematical assumption, admitting in his deposition that this number could be incorrect:
Q. What basis do you have, Dr. O’Connor, to assume that in good old rural Arkansas that the average air would be at a level of .45 nanograms per cubic meter and, therefore, below a 1 in a million risk level?
A. One of the worst things we run across after I got doing expert witness testimony is the word “assumption” be cause to the general population, that means I’m assuming this really happened up there and that doesn’t-that’s not what I mean. I mean I’m going to take this number and I’m going to state for you that I’m putting that number in as a mathematical assumption, which simply says that if the average air when there isn’t any spreading event is it a 1 in a million cancer risk, that’s the number out of a table. I’m not assuming that really happened any place in Arkansas or any place else. It’s an assumption for purposes of arithmetic and it tells you where it came from and in reality maybe the air in that part of Arkansas gives you a 5 in a million cancer risk or 10 in a million. I don’t have any way to know what that number is. I must say if the regular time just doesn’t contribute anything significant to your risk and your risk is mostly coming from the poultry litter, then under that scenario, there’s the number.
Q. But how do you know, sir, that presumption is not wrong?
A. I absolutely don’t. It is a modeled event and whether it was something that Dr. Sharma could do, for example, in a sophisticated computer air dispersion model, there’s still all kinds of assumptions that go into those things.
Based on these admissions by Dr. O’Connor, we agree with the circuit court’s finding that Dr. O’Connor’s theory of using these variables in the lead formula to calculate arsenic levels has never been tested, and therefore does not meet a key consideration for admissibility as set out in Daubert.
Another pertinent consideration in determining whether a theory or technique is scientific knowledge that will assist the trier of fact is whether the theory or technique has been subjected to peer review and publication. See Daubert, 509 U.S. at 592. The Daubert court stated:
Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, see S. Jasanoff, The Fifth Branch: Science Advisors as Policymakers 61-76 (1990), and in some instances well-grounded but innovative theories will not have been published, see Horrobin, the Philosophical Basis of Peer Review and the Suppression of Innovation, 263 JAMA 1438 (1990). Some propositions,moreover, are too particular, too new, or of too limited interest to be published. But submission to the scrutiny of the scientific community is a component of “good science,” in part because it increases the likelihood that substantive flaws in methodology will be detected. SeeJ. Ziman, Reliable Knowledge: An Exploration of the Grounds for Belief in Science 130-133 (1978); Reiman & Angelí, How Good Is Peer Review?, 321 New Eng.J. Med. 827 (1989). The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised.
Id. at 593-94.
In the present case, the circuit court found that the test used by Dr. O’Connor had not been subjected to peer review. During his deposition, Dr. O’Connor testified that the first time he applied the formula to arsenic was in the Gilmer, Texas case. He admitted in his deposition testimony that he had not submitted his use of the formula for arsenic for publication and therefore it had not been subject to peer review. However, in his March 25, 2006 affidavit, Dr. O’Connor stated that his “methods in this particular case have been peer reviewed and published,” citing to his own 2005 article “Transformation, Air Transport, and Human Impact of Arsenic from Poultry Litter” in Environmental Forensics. In the article, Dr. O’Connor explains the results of his study reporting “on the transport of both roxarsone and some of its degradation products through the air to impact homes near poultry litter-applied fields, resulting in house dust arsenic levels in 29 tested homes ranging from 10.7-130 mg/kg.” The study does not, however, discuss the “inhalation exposure reconstruction” of Table 9.
Another factor to consider when reviewing a particular scientific technique is the known or potential rate of error. See Daubert, supra. Here, the circuit court found that the potential error rate of Dr. O’Connor’s formula had not been shown. We have found nothing on appeal to refute this finding.
With regard to the existence and maintenance of standards factor, the circuit court noted in its ruling that Dr. O’Connor’s method in computing the average dust concentration for arsenic in Prairie Grove homes had been “severely criticized.” Dr. O’Connor analyzed twenty-three dust samples taken from homes in Prairie Grove for arsenic content, including samples taken from air conditioner filters and interior surface dust samples. In eight of the samples, the level of arsenic was “below detection limit” (“BDL”). Dr. O’Connor testified in his deposition that he excluded these BDL values from his calculations of average dust concentrations:
Q: Well, for the purpose of trying to handle data as you’ve tried to handle, in your Table 9 in your expert report, you’ve got average dust levels in parts per million reported in that table, right?
A. Yes.
Q. When you calculate average dust levels, which is really another way of saying the mean for the dust levels taken in a particular residence, if you have below detection limit as one in the entries for dust sample, you need to consider that in calculating the mean, don’t you?
A. Well, there are four things that you can do with a non-detect: A, you can consider it to be a zero and average it in with all the rest and then divide by number of samples; B, you can plug it in the detection limit and use that and calculate the average; C, you can plug in one half the detection limit and calculate it. And D, you consider it an outlier because you don’t know why it was below detection limit and it might have been a bad sample in which case you leave it out entirely and average the rest. That’s what I usually do.
Q. Is that what you did here? You left it out entirely?
A. That’s what I usually do. If I’ve got a below detection limit and I don’t know whether that means we didn’t have enough sample and I don’t go back and look it up, I will typically look at the ones where we have the numbers and average all of those.
In his March 25, 2006 affidavit, Dr. O’Connor addresses the argument that he should have included substitute values for results that were below detection limits. “Specifically, they state that I should have included in my averages the method detection limit (“MDL”), one-half the MDL, or zero. Although such procedures are sometimes employed, they are not appropriate in this case, as I was prepared to explain in my March 3, 2006, deposition, had the question been asked.” Dr. O’Connor goes on to say that he omitted the two BDLs from the dust samples taken from the Greens’ home because “[i]f I had substituted zero for those BDLs, that dust arsenic average would have been 17.4 ppm, rather than 26.1 ppm-still at a ‘contaminated’ level and within about 66% of the value I used. That is well within an acceptable error range for the type of data available.” Paul N. Boothe, Ph.D., agreed with Dr. O’Connor’s exclusion of the BDLs, stating in his affidavit, “after careful review of the dust arsenic data in question, Dr. O’Connor’s exclusion of the eight (8) BDL samples was the most valid decision for the data in question. The resulting average dust arsenic concentration is scientifically valid, conservative, and fair.”
However, Dr. William Sawyer testified in his deposition that generally, the EPA’s methodology requires that non-detects be considered when calculating averages. He further testified that non-detects should be considered in arriving at an average of arsenic concentration in dust in the present case. Moreover, Dr. Elizabeth L. Anderson’s report states that “EPA risk assessment guidance (1989) clearly states that sample results below the limit of detection, should not be censored but rather assumed to be present in the sample at a value equal to or less than the limit of detection.” According to Dr. Anderson, Dr. O’Connor’s decision to ignore the non-detects in the average concentrations biases the averages high. The testimony of these experts shows, as pointed out by the circuit court, that Dr. O’Connor’s method in computing the average dust concentration for arsenic has been criticized.
Finally, general acceptance within the scientific community can also have a bearing on the inquiry of the admissibility of expert testimony:
A “reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community.” United States v. Downing, 753 F.2d at 1238. See also 3 Weinstein & Berger ¶702[03], pp. 702-41 to 702-42. Widespread acceptance can be an important factor in ruling particular evidence admissible, and “a known technique which has been able to attract only minimal support within the community,” Downing, 753 F.2d, at 1238, may properly be viewed with skepticism.
Daubert, 509 U.S. at 594.
In the present case, the circuit court found that the scientific community had not generally accepted Dr. O’Connor’s formula, stating:
This formula, or one very similar to it, in fact, he got it from lead, from analyzing lead data. And, in fact, I read in the literature that accompanied it said don’t use for other metals. Well, what does Dr. O’Connordo? He uses it for arsenic, when its got a warning on there, don’t use it for any other metals. But, the bottom line is that he cannot pass-the plaintiffs have not shown to this court that this table from Dr. O’Connor has any validity. It’s not shown to this court to be rehable.
We have found no evidence that Dr. O’Connor’s use of the EPA formula to calculate arsenic levels has been generally accepted by the scientific community. In “A Detailed Explanation of Previously Reported Results from the Mathematics of Air Composition Reconstruction based on the Composition of Settled Dust,” Dr. O’Connor states that, while his formula had been used by EPA scientists to relate changes in dust lead levels to changes in air lead levels, “the equation is an absolutely true mathematical statement applicable to any dust composition of settleable, nonvolatile material.” However, because the EPA has only used the formula to determine lead levels, we cannot say that Dr. O’Connor’s use of the formula to determine arsenic levels has been generally accepted by the scientific community.
The circuit court also considered Dr. O’Connor’s reconstruction of Prairie Grove school exposure in reaching its finding that Table 9 was unreliable. The circuit court limited Dr. O’Connor’s testimony by prohibiting him from testifying that dust samples taken from various Prairie Grove homes were samples taken from Prairie Grove schools because “it grossly misleads the jury.” During his deposition, Dr. O’Connor testified that the school numbers he used actually came from twenty-three houses in the vicinity of the Prairie Grove schools because the school testing had been invalidated. Dr. O’Connor claimed that either the principal or the superintendent “came in the night before our people were there along with all of his janitorial crews, cleaned everything and pulled all the air-conditioning filters so when our crew arrived the next day there weren’t any air-conditioning filters that had anything on them.” Dr. O’Connor testified that he considered the samples of dust to be unreliable because someone had tampered with the sampling points. Because he considered them unreliable, he tested nearby homes and used these homes to compute the arsenic levels in the schools. We agree with the circuit court’s ruling that allowing Dr. O’Connor to take samples from homes and present them as school samples would grossly mislead the jury, and we therefore hold that the circuit court did not abuse its discretion in limiting this testimony.
After a thorough analysis of the Daubert factors, we cannot say that the circuit court abused its discretion. The Greens have failed to carry their burden of proof on the issue of reliability. See Foote, supra. Because we give the circuit court considerable leeway in deciding how to determine whether particular expert testimony is reliable, see Kumho Tire, supra, we hold that the circuit court did not abuse its discretion in excluding Table 9 and limiting Dr. O’Connor’s testimony. Accordingly, we affirm the circuit court’s ruling on this point.
C. Dr. Sawyer
For their final point on appeal, the Greens argue that the circuit court abused its discretion in refusing to allow Dr. Sawyer to testify about a dose calculation. Specifically, they assert that Dr. Sawyer was prepared to apply his own formula, experience, and conclusions to the data that appeared in the first column of Dr. O’Connor’s Table 9, and render his own independent dose calculation on the amount of airborne arsenic that was ingested by Blu Green. Alpharma responds, asserting that the Greens’ argument is unfounded because the circuit court ruled that Dr. Sawyer and the Greens’ other experts could rely on Dr. O’Connor’s raw data, and that Dr. Sawyer did give a dose calculation opinion.
In his decision limiting the testimony of Dr. Sawyer, the circuit court stated:
Dr. Sawyer is not going to be allowed to use any of Dr. O’Connor’s Table 9 figures except the measured dust amounts of arsenic in the homes. He’s not going to be allowed to use the ingestion dose rate-well, I guess that’s his ingestion dose rate that he calculated using the inhalation exposure reconstruction that was done by Dr. O’Connor. And since it was based on this Table 9, this court has no confidence in that ingestion dose rate either, since it was based on Dr. O’Connor’s inhalation exposure reconstruction.
In the August 2-3,2006, hearings, the circuit court again addressed his decision regarding the limitation of Dr. Sawyer’s testimony stating, “I did say your raw data, you know, whatever they measured, people can use, but not these averages that are on Table 9.” Therefore, the circuit court’s ruling only precluded Dr. Sawyer from relying on Table 9, and did not preclude him from using Dr. O’Connor’s raw data.
In fact, Dr. Sawyer did testify at trial that the arsenic dust levels found in the filters of the Greens’ home constituted a dose. At the close of the Greens’ case at trial, the circuit court acknowledged that there was testimony by Dr. Sawyer that the arsenic dust levels were sufficient to cause leukemia and partly relied on this testimony in denying Alpharma’s motion for directed verdict. Accordingly, because we hold that the circuit court did not abuse its discretion in excluding Table 9, and because Dr. Sawyer was not precluded from offering a dose opinion, we affirm the circuit court’s ruling on this issue.
Affirmed in part; reversed and remanded in part.
The circuit court granted Alpharma’s and the poultry producers’ motions to sever the claims arising from the injuries to the eleven plaintifis on January 19,2006, stating that the individual plaintifis’ claims were “improperly joined and [did] not meet the standard for permissive joinder set forth in Arkansas Rule of Civil Procedure 20(a).” The other claims are still pending in Washington County Circuit Court.
Citing Rodgers v. City of Des Moines, 435 F.3d 904, 908 (8th Cir. 2006),Tyson argues in its brief that appellants make “broad references to the sprawling record,” thereby forcing our court to “guess as to the evidence” that creates a genuine issue of material fact. Tyson’s argument is misplaced for the following reasons. First, the Greens, in their motion in response to summary judgment, make specific references to the exhibits in their brief in support and provide a list of deposition testimony and exhibits which they produced in response to the poultry producers’ motions. Second, under our standard of review, we conduct a review of the pleadings, affidavits, and “other documents filed by the parties.” Bennett, supra.
In our analysis, we do not consider, as the Greens suggest in their brief, the testimony, such as any trial testimony, made after the summary-judgment hearing.
The poultry producers adopt and incorporate Alpharma’s arguments on the expert-testimony issues. | [
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