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DONALD L. CORBIN, Justice.
A felony charge against Ap- pellee Gloria Jean Crawford was dismissed by the Van Burén County Circuit Court because the State had previously nolprossed a charge for the same offense pursuant to a plea agreement. The State appeals this dismissal. Crawford cross-appeals that the refiling of the felony charge violated her right to a speedy trial. This appeal by the State involves a perceived inconsistency in the decisions of this court. Thus, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b)(2) and Ark. R. App. P.-Crim. 3.
On March 18, 2005, Crawford was charged with one felony count of possession of a controlled substance with intent to deliver in violation of Ark. Code Ann. § 5-64-401 (Repl. 2005) and 163 misdemeanor counts of cruelty to animals in violation of Ark. Code Ann. § 5-62-101 (Repl. 2005). On August 25, 2005, the circuit court accepted a negotiated plea agreement where Crawford pled guilty to the misdemeanor charges, and the State nolprossed the felony charge. Crawford received a twelve-month suspended sentence upon the condition that she (1) pay a fine, court costs, and warrant service fee; (2) allow the Van Burén Animal Control Officer to inspect her property up to twice monthly; (3) submit to psychiatric testing and treatment, and provide a report of such to the prosecuting attorney’s office within six months; and (4) serve 300 hours of community service, remain on good behavior, and commit no criminal acts for twelve months. She was also ordered to forfeit the animals seized from her property to Van Burén County.
On April 3, 2007, because Crawford had failed to comply with the terms of her suspended sentence, the State refiled the felony information charging Crawford with possession of a controlled substance with intent to deliver. On April 23, 2007, Crawford filed a motion to dismiss, arguing that the State was barred from refiling this charge because it had previously been nol-prossed as part of a plea bargain. Crawford additionally argued that the refiling of this charge violated her right to a speedy trial, constituted prosecutorial bad faith and vindictiveness, and violated due process.
The circuit court granted Crawford’s motion to dismiss, concluding that pursuant to State v. Gaddy, 313 Ark. 677, 858 S.W.2d 81 (1993), when a charge is nol-prossed pursuant to a plea agreement, the State cannot later refile the charge. Additionally, the circuit court found that Crawford’s speedy-trial right had not been violated as the State had good cause to nolle prosequi the 2005 felony charge. Thus the time between dismissal and refiling of the 2005 felony charge was tolled pursuant to Ark. R. Crim. P. 28.3(f). The due process and prosecutorial vindictiveness claims were rendered moot. The State appealed dismissal of the felony charge, and Crawford cross-appealed the speedy-trial ruling. On direct appeal, we reverse. On cross-appeal, we affirm.
The State’s ability to appeal is not a matter of right; rather it is limited to those cases described under Ark. R. App. P.-Crim. 3. Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002); State v. Guthrie, 341 Ark. 624, 19 S.W.3d 10 (2000). Under Rule 3, we accept appeals by the State when our holding would establish important precedent or would be important to the correct and uniform administration of the criminal law. Id. The issue raised by the State in this case concerns the State’s ability to refile a criminal charge that had been previously nol-prossed pursuant to a plea agreement. Resolution of this issue involves the correct interpretation of our criminal rules with widespread ramifications. Accordingly, we accept jurisdiction of the State’s appeal.
In this case, the State contends that it was error for the circuit court to dismiss the previously nol-prossed felony charge against Crawford based on its interpretation of Gaddy that where a charge is nol-prossed pursuant to a plea agreement it cannot later be refiled. We agree with the State.
It is well settled that dismissal of a charge by nolle prosequi does not bar a subsequent prosecution for the same offense. See Ark. Code Ann. § 16-89-122 (Repl. 2005); Branning v. State, 371 Ark. 433, 267 S.W.3d 599 (2007); Halton v. State, 224 Ark. 28, 271 S.W.2d 616 (1954); McKinney v. State, 215 Ark. 712, 223 S.W.2d 185 (1949).
Crawford argues that she pled guilty to the 163 misdemeanor counts of animal cruelty in exchange for the State agreeing to dismiss the felony charge of possession of a controlled substance with intent to deliver. She contends that the State is barred from refiling the felony charge because to do so would result in a breach of the plea agreement. Crawford relies on Gaddy, 313 Ark. 677, 858 S.W.2d 81, and Halton, 224 Ark. 28, 271 S.W.2d 616, in support of this contention. Both cases are distinguishable.
In Gaddy, 313 Ark. 677, 858 S.W.2d 81, this court held that the State could not refile a charge following a nolle prosequi because the nolle prosequi was intended to be an unconditional dismissal of the charge. There, the record reflected that the plea agreement was intended to be an unconditional dismissal. The plea agreement was contingent upon the State nol-prossing one of the charges. The deputy prosecutor testified that she did not anticipate the charges ever being refiled; otherwise she would have asked for an outright dismissal of the case instead of the more customary nolle prosequi. Consequently, because the nolle prosequi was a final resolution of the case, the State could not later refile the charge.
Similarly in Halton, 224 Ark. at 30, 271 S.W.2d at 617, a nolle prosequi order was entered that discharged the defendant from “ ‘all further liability hereunder.’ ” The circuit court later tried to set aside the nolle prosequi order and schedule the case for trial. On appeal, this court held that where an information or indictment is unconditionally dismissed, it terminates the proceeding and the same cannot be reinstated and prosecution resumed. Id.
In the instant case, however, the matter can be decided as one of law. The record does not reflect that the nolle prosequi was an unconditional dismissal of the felony information against Crawford. Neither does the record reflect that the nolle prosequi was a final disposition of the case. Therefore, Gaddy and Holton are inapplicable, and the State was free to bring a subsequent prosecution on the felony charge.
On cross-appeal, Crawford contends that her right to a speedy trial has been violated because the State refiled the felony charge more than one year after it was originally filed. We do not agree.
Arkansas Rule of Criminal Procedure 28 governs speedy-trial determinations. A defendant must be brought to trial within twelve months of the date of arrest unless there are periods of delay that are excludable under Ark. R. Crim. P. 28.3. See Ark. R. Crim. P. 28.1. If the defendant is not brought to trial within the requisite time, the defendant is entitled to have the charges dismissed with an absolute bar to prosecution. See Ark. R. Crim. P. 30.1.
Where a defendant makes a prima facie showing of a speedy-trial violation, the burden shifts to the State to show that the delay was the result of the defendant’s conduct or was otherwise justified. Gamble v. State, 350 Ark. 168, 85 S.W.3d 520 (2002). A prima facie case for a speedy-trial violation is made where there is a period of delay beyond twelve months from the date of the charge. On appeal, we conduct a de novo review to determine whether specific periods of time are excludable under speedy-trial rules. Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007).
The filing of a speedy-trial motion tolls the running of the time for a speedy trial under our rules. Id. The time period between the nol-prossing of a charge and its subsequent refiling is also excluded from computing the time for a speedy trial where the charge was nol-prossed for good cause. See Ark. R. Crim. P. 28.3(f); Carter v. State, 280 Ark. 34, 655 S.W.2d 379 (1983). Good cause is demonstrated where the State has good reason to seek the nolle prosequi and there is no indication the State is simply trying to evade the speedy-trial requirement. Carter, 280 Ark. 34, 655 S.W.2d 379.
In the present case, the State had good cause to seek the nolle prosequi pursuant to a plea negotiation, and there is no indication that the State was merely trying to evade the speedy-trial requirement. The time period between, the filing of the original felony information and Crawford’s motion to dismiss (March 15 or 18, 2005 to April 23, 2007) is at most 770 days. The time period between the nolle prosequi and the refiling of the felony charge (August 25, 2005 to April 3, 2007) is 587 days. Subtracting the nolle prosequi time period from the overall time period leaves 183 days, which is well within the one-year period of the speedy-trial rule. Because the time period during which the felony charge was nol-prossed was permissibly excluded from the speedy-trial computation, the circuit court did not err in denying Crawford’s motion to dismiss on speedy-trial grounds.
Reversed on direct appeal; affirmed on cross-appeal.
The original felony information was signed on March 18, 2005. In the circuit court’s order granting Crawford’s motion to dismiss, the court notes the date of the original felony information to be March 15, 2005. The actual filing date in the record is illegible.
At the time the charge in this case was filed, Arkansas Rule of Criminal Procedure 28.2 provided that the time for speedy-trial calculation began to run on the date the charge was filed, unless the defendant was in custody or on bail prior to the filing of the charge, in which case the time for trial began to run on the date of the arrest. See Ark. R. Crim. P. 28.2. The 2007 amendment to Rule 28.2, effective April 26,2007, changed the speedy trial start date to the date of arrest, whether the charge is filed before or after that date. See In re Rules of Criminal Procedure, Rule 28.2(a), 369 Ark.App’x 560 (2007). | [
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TOM GLAZE, Justice.
On September 26, 2006, a Miller County jury found Flowers guilty of capital murder by committing or attempting to commit the felony of robbery, and that in the course of and in furtherance of robbery he caused the death of Obie Watson under circumstances manifesting extreme indifference to the value of human life. On appeal, Flowers argues that the trial court erred by denying his motion for a directed verdict and by allowing the testimony on the part of three State witnesses: Jason Green, Detective Marc Sillivan, and Detective Shawna Yonts. Flowers’s conviction for capital murder under Ark. Code Ann. § 5-10-101(a)(1) was supported by substantial evidence, and the trial court did not err in its evidentiary rulings. Accordingly, we affirm Flowers’s conviction.
The record reveals the following. On August 25, 2004, at approximately 11:00 p.m., Jason Green was riding his motorcycle on a street in Texarkana, when he observed a pickup truck in a ditch. Green stopped to render aid and called out, asking if the occupants were injured. A voice responded from the dark and told Green “we are fine” and asked him not to call the police “because we’ve been drinking.” Green asked once again if anyone was hurt and needed help, and the person again responded, saying everything was fine. Nevertheless, based on the nature of the responses, Green called 911 and reported the apparent accident. Green went home, got his own truck and returned to the scene of the accident. Green then used his headlights to illuminate the pickup in the ditch and called out to the occupants. There was no response so he approached and climbed into the bed of the wrecked truck and saw a man, later identified as Obie Watson, lying face down in the floorboard, with blood covering the passenger compartment. Officers from the Texarkana Police Department, responding to Green’s earlier 911 call, arrived at the scene, and found Watson’s body in the pickup truck.
After Watson was pronounced dead at the scene, the initial investigation revealed the back glass of his truck had been shattered. Officers found no skid marks, sliding marks, or any other indication of a cause of the accident. Evidence collected from Watson’s truck included a brick found in the floorboard of the truck, shattered glass, and DNA samples. A gun and shell casings were later found near Watson’s truck and fibers found in the hammer of the gun were determined to match fibers from nylon sacks containing wood that were in the bed of Watson’s truck. Forensic tests of a bullet recovered from Watson’s chest indicated that it was fired from the recovered gun. Lottery tickets were found inside Watson’s truck and scattered along the ditch where Watson’s truck stopped.
For his first point for reversal, Flowers argues that the trial court erred by denying his motion for a directed verdict. An appeal from a denial of a motion for a directed verdict is a challenge to the sufficiency of the evidence. Woolbright v. State, 357 Ark. 63, 160 S.W.3d 315 (2004). Reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict was supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence that is forceful evidence enough to compel a conclusion one way or the other beyond speculation or conjecture. Benson v. State, 357 Ark. 43, 160 S.W.3d 341 (2004). The reviewing court views the evidence in the light most favorable to the verdict, and considers only evidence that supports the verdict. Clem v. State, 351 Ark. 112, 117, 90 S.W.3d 428, 430 (2002).
Circumstantial evidence may constitute substantial evidence to support a conviction. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001). The longstanding rule in the use of circumstantial evidence is that, to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Id. The question of whether the circumstantial evidence excludes every other reasonable hypothesis consistent with innocence is for the jury to decide, id. Upon review, this court must determine whether the jury resorted to speculation and conjecture in reaching its verdict. Id.
A person commits capital murder if acting alone or with one or more other persons, he or she commits or attempts to commit robbery “and in the course of and in furtherance of” robbery “or in immediate flight therefrom, he or she or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life.” Ark. Code Ann. § 5-10-101(a)(1) (Repl. 2006).
Flowers specifically argues that the jury’s verdict was based on speculation because there was no testimony that Watson had a wallet or anything else in his pocket when he was killed, nor was there evidence that the lottery tickets, found scattered some distance from Watson’s truck, belonged to Watson. There was testimony that Watson regularly purchased lottery tickets with very particular numbers, and lottery tickets that matched these numbers were found along the ditch where Watson’s truck was located and inside the truck itself. Watson’s pant’s pocket was turned inside out and investigators found neither a wallet nor any other identification on Watson’s person. The store clerk who sold the lottery tickets testified that Watson had purchased the tickets the night he was killed. The clerk further averred that Flowers had told the clerk that Flowers would pay back money the clerk loaned Flowers as soon as he was able to perform a robbery. DNA profiles taken from inside Watson’s truck matched Flowers’s DNA profile, and on the night Watson was murdered Flowers was picked up by another witness who testified that Flowers told her that he shot and killed Watson because Watson had seen Flowers’s face. Finally, a witness testified that Flowers had possession of a gun at the time of Watson’s murder that was later established as the murder weapon, and told the owner of the gun where it could be found after Watson’s murder. Based on the direct and circumstantial evidence presented at trial, the jury’s verdict was supported by substantial evidence without the need to resort to speculation and conjecture.
For his second point for reversal, Flowers argues that the trial court erred by allowing Jason Green to testify regarding a person’s voice and the person was unknown, unseen, and unidentified at the scene of the crime. The Arkansas Rules of Evidence define hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ark. R. Evid. 801(c) (2007). This court has held that an out-of-court statement is not hearsay under Rule 801(c), where the statement is offered to show the basis for the witness’s actions. See Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998); Bliss v. State, 282 Ark. 315, 668 S.W.2d 936 (1984).
Fiere, Jason Green’s testimony — that a voice responded “Yes, we are fine. We are not hurt. We will be coming right up. Please do not call the police as we have been drinking” — explained why Green left the scene to get his truck so he could offer help and also why he called 911 for assistance. Because Green’s testimony was provided in order to show his basis of action, the trial court did not err in overruling Flowers’s hearsay objection.
For his third point for reversal, Flowers argues that the trial court erred in allowing Officer Sillivan’s opinion testimony that the rear glass window of Watson’s truck appeared to be broken from the outside. Flowers contends that “[a]t trial, there were no facts articulated by [ ] Sillivan that would permit him to give his opinion as to the direction from which the glass had been broken.”
Under Ark. R. Evid. 701, a witness not testifying as an expert may provide testimony in the form of opinions and'inferences if those opinions and inferences are rationally based on the perception of that witness and are helpful to a clear understanding of the witness’s testimony or a determination of a fact in issue. This court reviews a trial court’s decision to allow lay opinion testimony under Rule 701 for abuse of discretion. Bridges v. State, 327 Ark. 392, 398, 938 S.W.2d 561, 564 (1997).
Our court held in Robinson v. State, 353 Ark. 372, 383, 108 S.W.3d 622, 628 (2003), that a trial court did not abuse its discretion when it allowed lay opinion testimony by an investigator regarding a victim’s blood loss from a gunshot wound based on his experience as a homicide investigator. Similarly, in the case before us now, the trial court overruled Flowers’s objection and allowed Sillivan to testify and give his lay opinion based on his work experience and observations. Sillivan testified that his opinion was that the truck’s back glass window had been broken from the outside. He based his opinion on the shattered glass found inside Watson’s truck and a brick found inside the truck. The circuit court ruled this testimony was rationally based on Sillivan’s prior law enforcement experience, forensic training, and personal observation; we believe the circuit court was correct in doing so under Rule 701. Therefore, the trial court did not abuse its discretion.
For his final point, Flowers argues the trial court erred when it allowed Officer Shawna Yonts to provide expert testimony on the direction of blood spatters found inside Watson’s truck. Whether a witness qualifies as an expert in a particular field is a matter within the trial court’s discretion, and this court will not reverse such a decision absent an abuse of discretion. See, e.g., Jackson v. State, 359 Ark. 297, 302, 197 S.W.3d 468, 472 (2004). Ark. R. Evid. 702 provides the following:
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 Farm Bureau Mutual Insurance Co. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000), this court adopted the rule from Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and held that trial courts must first determine whether an expert is proposing to testify to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue. Such a determination will require an assessment of whether the reasoning or methodology the testimony is based on is scientifically valid and whether it is applicable to the facts in issue. Farm Bur. Mut. Ins. Co., supra. This court has also adopted the subsequent Supreme Court decision in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), which determined that Rule 702 applies equally to all types of expert testimony and not simply to scientific expert testimony, and that they must be shown to be both reliable and relevant. See Coca-Cola Bottling Co. v. Gill, 352 Ark. 240, 100 S.W.3d 715 (2003).
Here, the trial court concluded that Yonts’s specialized training in “blood-spatter analysis” provided sufficient basis to qualify her to give expert testimony. Further, the trial court stated that it was uncontradicted that Yonts’s training provided her with “knowledge in this field that a person would receive that would enable them to qualify to testify and give their opinion in this field of expertise.”
This court has held that “if some reasonable basis exists demonstrating that the witness has knowledge of the subject beyond that of ordinary knowledge, the evidence is admissible as expert testimony” under Rule 702. Flowers v. State, 362 Ark. 193, 210, 208 S.W.3d 113, 127 (2005). Because Yonts had received specialized training that would have provided her with more than “ordinary knowledge” in blood-spatter analysis, the trial court did not abuse its discretion in admitting Y onts’s testimony as that of an expert witness.
The record has been reviewed for all objections, motions, and requests adversely decided against Flowers as required under Ark. Sup. Ct. R. 4-3(h). See, e.g., White v. State, 370 Ark. 284, 259 S.W.3d 410 (2007). We find no prejudicial error.
Flowers also argues that the evidence was insufficient to support his conviction because there was no testimony that he killed Watson with premeditation or for pecuniary gain. However, the jury convicted Flowers for causing Watson’s death in the furtherance of a robbery, not for a premeditated, deliberate killing. Pecuniary gain is an aggravating circumstance that a jury may use for consideration of whether to impose the death penalty under Ark. Code Ann. § 5-4-604 (Repl. 2006) — which was not imposed. Accordingly, the court does not address these arguments. | [
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JIM GUNTER, 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. Holden, 373 Ark. 5, 280 S.W.3d 23 (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); and 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 theft-of-property charges against Appellee Eddie Lee for an allegedly defective arrest warrant. We reverse the circuit court’s order and remand the case for trial.
On November 7, 2005, the West Helena City Council voted to authorize the payment of a bonus or incentive pay in the amount of $1,000 for all full-time employees and elected officials and in the amount of $500 for all part-time city employees. On November 10, 2005, the council members voted to pay all elected city officials, including the council members, the mayor, and the city clerk a full salary for the year 2006 when they would no longer be in office. According to the State, these members of the West Helena City Council, upon learning that they were not going to be elected to positions on the council of the newly formed City of Helena-West Helena, met and voted to pay themselves and other elected officials for one full year. Those officials had already been paid up to that point in November 2005. Checks representing pay for 2006 were issued on November 15, 2006, and the checks negotiated were those issued to Whitfield, Weaver, Lee, Holden, Richardson, Joshaway, and Ashwood. Additionally, on December 27, 2005, checks designated as incentive pay were issued to Lee, Holden, Richardson, Joshaway, and Ashwood, and these five checks were negotiated. The State contends that the cashing of these checks by these defendants, as opposed to their fellow council members who either returned or never negotiated their checks, constituted a “taking” prohibited by statute.
On December 7, 2006, a motion to dismiss for defective warrant of arrest was filed. In the circuit court’s June 12, 2007 order, it states that Lee’s motion to dismiss was “adopted by the Defendant,” which indicates that a motion to dismiss was not necessarily filed in each defendant’s case. It is alleged that the arrest warrant was signed by a deputy clerk of the court, that “bearing the signature of a Deputy Clerk is impermissible and that the arrest [was] invalid.” Because Lee’s motion to dismiss was adopted, we do not remand for rebriefing. The State now brings its appeal from the circuit court’s dismissal order pursuant to Ark. R. App. P.-Crim. 3 (2007).
For the reasons articulated in State v. Richardson, supra, we accept jurisdiction over the instant appeal. See Ark. R. App. P.-Crim. 3. Our case law is replete with the proposition that a defendant is not entitled to a dismissal due to an illegal arrest. See Biggers v. State, 317 Ark. 414, 878 S.W.2d 717 (1994). Thus, even if the arrest were illegal, the State’s prosecution of Lee’s theft-of-property charges should go forward. For these reasons, we hold that the circuit court erred in granting Lee’s motion to dismiss on the basis of an allegedly defective arrest warrant. Accordingly, we reverse the dismissal order and remand the case for trial.
Reversed and remanded. | [
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Per Curiam.
Appellant Charles R. Griffith Farms, Inc., by and through its attorney, Edward H. Schieffler, has filed a motion for rule on clerk. The record reflects that the appellant timely filed its notice of appeal on November 21,2007, making his record on appeal due on or before February 19, 2008. On January 25, 2008, the circuit court entered an order extending the time for filing the transcript to April 27, 2008. Appellant states that when it attempted to tender the record to this court’s clerk on April 17, 2008, the clerk refused to docket the record because the clerk questioned the order granting an extension of time.
Appellant subsequently filed the present motion. Attached to appellant’s motion is an affidavit from counsel for the appellee, stating that he was aware of the court reporter’s inability to complete the record during the initial ninety days, that he knew of appellant’s motion for extension of time, and that he had the opportunity for a hearing, but did not object to the extension of time. However, the affidavit does not cure the deficiency of the order granting the extension of time.
Arkansas Rule of Appellate Procedure-Civil 5(b)(1) provides:
(b) Extension of time.
(1) If any party has designated stenographicaUy 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 foUowing findings:
(A) The appeUant has filed a motion explaining the reasons for the requested extension and served the motion on aU counsel of record;
(B) The time to file the record on appeal has not yet expired;
(C) AU parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing;
(D) The appeUant, in comphance with Rule 6(b), has timely ordered the stenographicaUy 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 stenographicaUy reported material in the record on appeal.
Ark. R. App. P.-Civ. 5(b)(1) (2007). 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). We have further held that we expect strict compliance with the requirements of Rule 5(b) and that we do not view the granting of an extension as a mere formality. See id. Where an order fails to comply with Rule 5(b), we may remand the matter to the circuit court for compliance with the rule. See, e.g., Kelly v. Ford, 373 Ark. 111, 281 S.W.3d 744 (2008) (per curiam).
Upon a remand for compliance with Rule 5(b)(1), the circuit court shall determine whether the rule was complied with at the time the original motion for extension of time was filed and granted. See id. (citing McGahey v. State, 372 Ark. 46, 269 S.W.3d 814 (2007) (per curiam)). 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. See 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. See id.
Because the order of extension in this case makes no reference to each of the findings of the circuit court required by the rule and because there must be strict compliance with the rule, we remand the matter to the circuit court for compliance with Rule 5(b)(1).
Remanded. | [
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Per Curiam.
Now before us is Appellant’s motion to reconsider striking Appellant’s brief from the record. On February 28, 2008, this court granted Appellees’ joint motion for reconsideration of Appellant’s motion to file belated brief, and then denied Appellant’s motion to file belated brief. Lasecki v. Sanders, 372 Ark. 515, 277 S.W.3d 600 (2008) (per curiam) (Lasecki I). In denying the motion to file belated brief, we held that our previous decision to grant Appellant’s motion was erroneous due to our reliance upon Appellant’s misrepresentation that the motion was unopposed. Specifically, we explained as follows:
[A] motion for an extension of time is an entirely different pleading than a motion for belated brief. Furthermore, even though Appellees were approached about an extension of time, this was done prior to the date Appellant’s brief or a motion for extension of time were due. It is undisputed that Appellees were never contacted regarding the motion for belated brief, and that Appellant’s counsel merely assumed that they would not be opposed to the motion for belated brief. This assumption was not only erroneous, it led to Appellant’s misrepresentation to this court that Appellees were unopposed to the motion for belated brief.
While this court regularly grants motions for belated briefs in criminal cases, we are reluctant to do so in civil cases without a showing of cause, especially in situations where we have already granted multiple extensions of time. We have made it clear that our law imposes a duty on lawyers and litigants to exercise reasonable diligence to keep up with the status of their case.
Id. at 517, 372 S.W.3d at 602 (citations omitted).
In his motion for reconsideration, Appellant not only continues to refer to his motion for belated brief as “unopposed,” but also maintains that Appellees consented to the extension of time. However, unlike his previous statement that he assumed there would be no opposition to the motion for belated brief, Appellant and his counsel, Frederick S. “Rick” Spencer, now argue that there was no misrepresentation of actual consent; nor was Appellees’ consent qualified. We are again unpersuaded by Appellant’s arguments, and he has failed to meet his burden of demonstrating that there was some error of fact or law in the present decision that would merit reconsideration of the denial of the motion for belated brief. For the same reasons we set forth in Lasecki I, we reject these arguments and again note that there is a difference between a request for an extension of time and a request to file a belated brief.
We take this opportunity to note that we are again concerned with possible misrepresentations by Appellant’s counsel. In his discussion of the above “actual consent” argument, Spencer sets forth that he personally requested and received consent of both Appellees’ counselors, including Christy Comstock. Specifically, Spencer states that “Ms. Comstock gave her consent the day or the day after he arrived in Florida and after he filed the Partially Unopposed Motion for Extension.” In Appellee Casey S. Sanders’s response to the present motion, Comstock states that Spencer has again misrepresented the facts in saying that “he contacted [her] by telephone on either December 31 or January 1” because these are days Comstock’s office was closed and she was away from the office. She further states that Appellant’s counsel did not, in fact, contact her before January 2, 2008. Based upon the foregoing, we refer the matter to the Committee on Professional Conduct.
Additionally, Appellant’s argument that it is unfair to strike his brief is without merit. First and foremost, it has been established that there is no merit to the contention that dismissal of .an appellant’s claim because of his attorney’s unexcused conduct is unfair or is an unjust penalty on the appellant. See Link v. Wabash R. R. Co., 370 U.S. 626 (1962); Florence v. Taylor, 325 Ark. 445, 928 S.W.2d 330 (1996). Frankly, Appellant “ ‘voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent.’ ” Florence, 325 Ark. at 451, 928 S.W.2d at 333 (quoting Link, 370 U.S. at 633-34).
Second, the responsibility to perfect an appeal rests solely with an appellant or appellant’s counsel and not with any other person. See Davis v. Williamson, 353 Ark. 225 114 S.W.3d 216 (2003) (per curiam); Sullivan v. State, 301 Ark. 352, 784 S.W.2d 155 (1990) (per curiam). Here, Appellant and his counsel contend that we would not be faced with the issue of filing a belated brief because his “partially unopposed motion to extend the time for filing the brief’ would have been timely if (1) the United Parcel Services had delivered the motion as guaranteed; (2) this court, like the federal court system, had electronic filing; and (3) Spencer lived in Little Rock, Arkansas, and did not have a six-hour round trip drive to make a personal delivery of the motion. Not only are these reasons unpersuasive, but they fly in the face of our well-established principle that the responsibility of perfecting an appeal lies with an appellant and his counsel. Moreover, as we stated in Lasecki I, we will not grant a motion for belated brief in a civil case without a showing of good cause. Again, Appellant has failed to demonstrate good cause, which would warrant a filing of a belated brief. Accordingly, and for the reasons set forth in Lasecki I, we deny Appellant’s motion.
Motion for reconsideration denied. | [
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JIM GUNTER, Justice.
This appeal arises from an order of the Washington County Circuit Court granting a motion for summary judgment filed by Appellees Lowell Investment Partners, LLC (LIP); Pinnacle Management Services, LLC (PMS); Tim Graham (Graham); Bill W. Schwyhart (Schwyhart); J.B. Hunt (Hunt); Ozark Mountain Water Park, LLC (Ozark); J.B. Hunt, LLC (Hunt, LLC); Schwyhart Holding, LLC (Schwyhart, LLC); and Tim Graham, LLC (Graham, LLC). Appellants KC Properties (KC) and Buildings, Inc. (Buildings) appeal. We reverse the circuit court’s order granting summary judgment and remand for further proceedings.
On August 5, 2004, KC and LIP entered into an operating agreement as members of Ozark. Pursuant to that operating agreement, LIP owned fifty-one percent of Ozark and KC owned forty-nine percent. PMS was named manager of Ozark. Ozark was created for the purpose of “operation of the water park at or near the intersection of Interstate 540 and Highway 264 in Lowell, Arkansas.” The park was to occupy 16.58 acres of an approximately thirty-four acre tract of land at that site. The land was owned by Pinnacle Hills Realty (PHR), an LLC in which Schwyhart, LLC; Graham, LLC; and J.B. Hunt, LLC are members. Schwyhart, LLC; Graham, LLC; and J.B. Hunt, LLC are also the members of PMS. Schwyhart, Hunt, and Graham are the managers of PMS. The property was to be sold to Ozark for $3,000,000. That same day, Buildings entered into a contract with Ozark to construct the water park on the subject property on a cost-plus-six-percent basis.
On September 10, 2004, PHR entered into a real-estate contract with Parker Northwest Properties, LLC to sell the entire property located at the intersection of Interstate 540 and Highway 264. PHR sold the entire thirty-four acres for $8,250,000. KC filed suit against Appellees for breach of contract and breach of fiduciary duties in Washington County Circuit Court. KC contended that, because the subject property was to be sold to Ozark for $3,000,000, Ozark missed an opportunity to own property that was worth at least $1,023,088.25 more than what Ozark paid for it, and therefore, lost at least $501,313.24 in damages. Buildings sued for breach of contract contending that it lost a six-percent profit, which would have been $410,760. On January 23, 2007, the Washington County Circuit Court granted summary judgment in favor of Appellees on all counts. Appellants KC and Buildings now bring their appeal.
I. Standard of review
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) (citing Wagner v. Gen. Motors Corp., 370 Ark. 268, 258 S.W.3d 749 (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 Bennett, supra (citing Pakay v. Davis, 367 Ark. 421, 241 S.W.3d 257 (2006)). 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. 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 focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.
II. Points on appeal
A. Ark. Code Ann. § 4-32-304
For their first point on appeal, Appellants argue that the circuit court erred in holding that Ark. Code Ann. § 4-32-304 (Repl. 2001) prohibits a member of a limited-liability company from suing a fellow member and manager for breach of contract and breach of fiduciary duty. Appellants specifically argue that the circuit court erred in holding that neither the members of Ozark nor its manager were proper parties to this lawsuit pursuant to § 4-32-304. Appellants contend that § 4-32-304 only applies to situations where a third party seeks to hold a member of an LLC liable for the debt, obligation, or liability of the LLC or another member thereof, but does not provide a shield for a member’s or manager’s own acts or omissions.
Appellees respond, arguing that the circuit court was correct in its holding. Specifically, Appellees assert that Appellants’ claims against PMS must fail because the operating agreement states that the Manager shall not be held liable under a judgment, decree, or order of court for a debt, obligation, or liability of the company. Appellees contend that Appellants’ claims against Graham, Schwyhart, Hunt, and their respective LLCs must fail because they were not parties to the operating agreement in their individual or corporate capacities. Appellees assert that, with respect to the breach-of-fiduciary-duty claims, the only members of Ozark were LIP and KC. Further, Appellees argue that Ark. Code Ann. § 4-32-304 eliminates breach of contract and tort liability for LIP, Graham, Schwyhart, Hunt, and Ozark.
This case presents an issue involving statutory interpretation. When reviewing issues of statutory interpretation, 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. Talbert v. U.S. Bank, N.A., 372 Ark. 148, 271 S.W.3d 486 (2008) (citing Maddox v. City of Fort Smith, 369 Ark. 143, 251 S.W.3d 281 (2007)). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Id. A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. Id. When a statute is clear, however, it is given its plain meaning, and we will not reach for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. Id. We are very hesitant to interpret a legislative act in a manner contrary to its express language, unless it is clear that a drafting error or omission has circumvented legislative intent. Id.
Arkansas Code Annotated § 4-32-304, which addresses the liability of members, provides:
Liability of Members to Third Parties
Except for the personal liability for acts or omissions of those providing professional service as set forth in § 4-32-308, a person who is a member, manager, agent or employee of a limited liability company is not liable for a debt, obligation, or Lability of limited liability company, whether arising in contract, tort, or otherwise or for the acts or omissions of any other member, manager, agent or employee of the limited liability company.
The Arkansas Small Business Entity Tax Through Act, Ark. Code Ann. § 4-32-402 (Repl. 2001), also addresses the liability of members, stating:
Unless otherwise provided in an operating agreement:
(1) A member or manager shall not be liable, responsible, or accountable in damages or otherwise to the limited liability company or to the members of the limited liability company for any action taken or failure to act on behalf of the limited liability company unless the act or omission constitutes gross negligence or willful misconduct;
While the plain language of § 4-32-304 seems to shield one member of a limited-liability company from being held liable to another member, the language of § 4-32-402 clearly allows members to be held liable to other members of the limited-liability company when an act or omission constitutes gross negligence or willful misconduct. Statutes relating to the same subject are said to be in pari materia and should be read in a harmonious manner, if possible. See Weiss v. Maples, 369 Ark. 282, 253 S.W.3d 907 (2007). The title of § 4-32-304, “Liability of members to third parties,” clarifies the intent of the legislature in enacting this statute and allows it to be read harmoniously with § 4-32-402. We have long held that the title of an act is not controlling in its construction, although it is considered in determining its meaning when such meaning is otherwise in doubt. Baker Refrigeration Systems, Inc. v. Weiss, 360 Ark. 388, 201 S.W.3d 900 (2005). The title may only be examined for the purpose of shedding light on the intent of the legislature. Id. Thus, when both the language of § 4-32-304 and its title are read together, it is clear that the legislature intended to prohibit suit by a third party against one member of a limited-liability company for another member’s actions.
The circuit court ruled that, even if § 4-32-304 allowed members to sue other members, summary judgment was still proper because Graham, Schwyhart, Hunt, and their respective LLCs were not members. The operating agreement states that the agreement “is entered into and shall be effective as of August 5, 2004, by and among the Company, the Manager, and all Persons who are identified as Members on Exhibit A attached hereto.” Exhibit A attached to the agreement lists only LIP and KC as members. Therefore, according to the agreement, Hunt, Graham, Schwyhart, and their LLCs were not members of Ozark and § 4-32-304 does not apply to them.
Because LIP and KC were the only members of Ozark with PMS acting as manager, LIP and PMS were the only entities that KC could bring suit against under section § 4-32-402(1), set forth above, which provides that a member or manager, unless otherwise provided for by an operating agreement, can only be liable to the limited-liability company or members thereof if the act or failure to act constituted gross negligence or willful misconduct. However, LIP and PMS did not sell the property to another party. Rather, PHR, as owner of the property, sold the thirty-four acres to another party for $8,250,000. Thus, neither PMS nor LIP committed any act or failure to act constituting gross negligence or willful misconduct for which they could be held liable under § 4-32-402(1). Accordingly, we affirm the circuit court’s order of summary judgment on this point.
B. Privity of contract
For their second point on appeal, Appellants argue that the circuit court erred in granting summary judgment based on its finding that blunt, Graham, Schwyhart, and their LLCs were not in privity of contract with KC. Appellants assert that the circuit court erred in finding that there was no allegation made by Appellants that Hunt, Graham, Schwyhart, and their LLCs were agents of the manager, PMS. Appellants contend that the use of the term “manager” implies that there is an agency relationship and one should not have to actually use the term “agent” in order to imply that relationship. Appellees respond, arguing that the only entities that can potentially be held liable for a breach of contract in this situation are Ozark and perhaps its manager, PMS, because the contract to build the water park was between only Buildings and Ozark.
Appellants rely on § 4-32-301 (b)(2) (Repl. 2001) for their proposition that the term “manager” implies that there is an agency relationship and that the term “agency” need not be used to allege an agency relationship. Section 4-32-301 states:
(a) Except as provided in subsection (b) of this section, every member is an agent of the limited liability company for the purpose of its business or affairs, and the act of any member, including, but not limited to, the execution in the name of the limited liability company of any instrument, for apparently carrying on in the usual way the business or affairs of the limited liability company of which he or she is a member, binds the limited liability company, unless the member so acting has, in fact, no authority to act for the limited liability company in the particular matter, and the person with whom the member is dealing has knowledge of the fact that the member has no such authority.
(b) If the articles of organization provide that management of the limited liability company is vested in a manager or mangers:
(1) No member solely by reason of being a member is an agent of the limited liability company; and
(2) Every manager is an agent of the limited liability company for the purpose of its business or affairs, and the act of any manager, including, but not limited to, the execution in the name of the limited liability company of any instrument, for apparently carrying on in the usual way the business or affairs of the limited liability company of which he is a manager binds the limited liability company, unless the manager so acting has, in fact, no authority to act for the limited liability company in the particular matter, and the person with whom the manager is dealing has knowledge of the fact that the manager has no such authority.
Id. (emphasis added).
Appellants admit that there is no privity of contract between the individuals, their LLCs, and KC, but still seek to hold the individuals and their LLCs liable for breach of contract under the theory of agency. It is clear that the individuals and their LLCs were not parties to the operating agreement. “Pinnacle Management Services, LLC, Manager, by Bill W. Schwyhart, Manager” and “Pinnacle Management Services, LLC, Manager, by Tim Graham, Manager” signed the agreement for Ozark. “Pinnacle Management Services, LLC, Manager, by Bill W. Schwyhart, Manager” and “Pinnacle Management Services, LLC, Manager, by Tim Graham, Manager” signed for member LIP. Ken Bailey, President of KC, signed for member KC. “Bill W. Schwyhart, Manager” and “Tim Graham, Manager” signed for Manager PMS. Therefore, the LLCs were not parties to the operating agreement, and Schwyhart and Graham only signed as agents of PMS.
Appellants argue that PMS, through the individuals and their LLCs, caused PHR to sell the property intended for the water park and that these actions of PMS are imputed to LIP by and through their common membership and management. Pursuant to § 4-32-301 (b)(2), PMS, as manager of Ozark, would also be considered an agent of Ozark. PMS is also the manager of LIP, and therefore, an agent of LIP. Schwyhart, Hunt, and Graham are managers of PMS, and pursuant to § 4-32-301, agents of PMS. The LLCs were acting in their capacity as members of PHR when they sold the property to another party and were not acting on behalf of either PMS or LIP. PHR had no fiduciary duty to Appellants. Further, Appellants provide us with no case law or authority for their proposition that the actions of one corporation can be imputed to another solely by their common membership and management. Because Appellants have failed to provide proof rebutting the LLCs’ proof that there was no breach of the operating agreement or a breach of fiduciary duties, we affirm summary judgment on this point.
C. Consequential damages
For their third point on appeal, Appellants argue that the circuit court erred in holding that Buildings had no claim for breach of contract based upon a mutual waiver of consequential damages. Appellants specifically argue that the circuit court erred in equating lost profits with consequential damages. In response, Appellees assert that the circuit court was correct in its ruling because paragraph 13 of the contract provides for a mutual waiver of consequential damages.
Consequential damages are those damages that do not flow directly and immediately from the breach, but only from some of the consequences or results of the breach. See Reynolds Health Care Sens., Inc. v. HMNH, Inc., 364 Ark. 168, 217 S.W.3d 797 (2005); Bank of Am. N.A. v. C.D. Smith Motor Co., 353 Ark. 228, 106 S.W.3d 425 (2003); Dawson v. Temps Plus, Inc., 337 Ark. 247, 987 S.W.2d 722 (1999). Lost profits are well recognized as a type of consequential damages. See Reynolds, supra. In order to recover consequential damages in a breach-of-contract case, a plaintiff must prove more than the defendant’s mere knowledge that a breach of contract will entail special damages to the plaintiff. Id. It must also appear that the defendant at least tacitly agreed to assume responsibility. Id.
In the present case, paragraph 13 of the contract between Ozark and Buildings states:
MUTUAL WAIVER OF CONSEQUENTIAL DAMAGES Owner and Contractor agree to waive all claims against each other for any consequential damages that may arise out of or relate to this Agreement. Owner agrees to waive damages including but not limited to Owner’s loss of use of the Project, any rental expenses incurred, loss of income, profit or financing related to the Project, as well as the loss of business, loss of financing, principal office overhead and expenses, loss of profits not related to this Project, or loss of reputation. Contractor agrees to waive damages including but not limited to loss of business, loss of financing, principal office overhead and expenses, loss of profits not related to this Project, loss of bonding capacity or loss of reputation. This Article shall not be construed to preclude contractual provisions for liquidated damages when such provisions relate to direct damages only. The provisions of this Article shall also apply to the termination of this Agreement and shall survive such termination.
(Emphasis added.) The contract entered into between Buildings and Ozark provided that it was a cost-plus-six-percent contract. Buildings sued for six percent, or $410,760. This waiver specifically provided that Buildings agreed to waive “loss of profits not related to this Project.” It is clear that the $410,760 in damages claimed by Buildings for breach of contract are related to the project, and therefore, not waived by the operating agreement. Further, the damages claimed by Buildings are not consequential damages because they flow directly from the breach of the construction contract. See Reynolds, supra. Thus, we hold that the circuit court erred in finding that Buildings waived its breach-of-contract claim.
Appellees argue that Buildings’s breach-of-contract claim should be dismissed because it did not fulfill the condition precedent that requires the parties to attempt to settle any dispute through mediation before a lawsuit is filed. The contract between Ozark and Buildings states:
15.2 INITIAL-DISPUTE RESOLUTION PROCESSES If a dispute arises out of or relates to this Agreement or its breach, the parties shall endeavor to settle the dispute first through direct discussions. If the dispute cannot be settled through direct discussions, the parties shall endeavor to settle the dispute by mediation under the current Construction Industry Mediation Rules of the American Arbitration Association before recourse to any binding dispute resolution procedures.
In their reply brief, Appellants argue that Appellees waived their right to enforce mediation. Appellants attached to their response to the motion for summary judgment two letters from their attorney to the Appellees’ attorney requesting mediation, with one of the letters setting a deadline for the mediation. Appellants assert that Appellees never responded to the request for mediation and therefore waived the mediation requirement. The issue of whether Appellees waived the- mediation requirement raises issues of fact, thereby making summary judgment inappropriate. Accordingly, we hold that the circuit court erred in granting summary judgment on Buildings’s claim for breach of contract.
D. Interference with contractual relationships
For their fourth point on appeal, Appellants argue that the circuit court erred in holding that there was not sufficient evidence to support Buildings’s claim for interference with contractual relationships. Appellants assert that by selling the property where Buildings was to construct the water park, the individual appellees and their limited-liability companies interfered with Buildings’s contract with Ozark making it impossible for it to construct the water park. In response, Appellees argue that the circuit court was correct in its ruling because Appellants failed to allege in their amended and restated complaint or otherwise state in the record exactly what constitutes the improper conduct of the individual appellees and their LLCs.
The elements of tortious interference that must be proved are: (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. See El Paso Prod. Co. v. Blanchard, 371 Ark. 634, 269 S.W.3d 362 (2007) (citing Stewart Title Guar. Co. v. Am. Abstract & Title Co., 363 Ark. 530, 215 S.W.3d 596 (2005)). Our law requires that the conduct of the defendants be at least “improper,” and we look to factors in § 767 of the Restatement (Second) of Torts for guidance about what is improper. See Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001) (citing Mason v. Wal-Mart Stores, Inc., 333 Ark. 3, 969 S.W.2d 160 (1998)). In determining whether an actor’s conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors:
(a) the nature of the actor’s conduct,
(b) the actor’s motive,
(c) the interests of the other with which the actor’s conduct interferes,
(d) the interests sought to be advanced by the actor,
(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor’s conduct to the interference and the relations between the parties.
Id.
Here, Appellants assert that the following issues of fact should be considered by a jury in determining whether or not Appellees’ actions were improper: (1) Appellees allowed Ozark to enter into a contract with Buildings to build a water park on the 16.58 acres when Schwyhart and Graham were in the process of negotiating for the sale of the exact same property to another buyer for another purpose; (2) that the Appellees breached fiduciary duties in the manner in which they went about selling the water park property; (3) that the individuals were attempting to promote their own interest and to profit for themselves; (4) that the Appellees sold the property in secret; (5) that the conduct interfering with the contract took place not only before but within a month after signing an agreement to build the water park on August 5, 2004; and (6) that the Appellees were not engaged in an arm’s length transaction with Buildings.
The circuit court ruled that Appellants “failed to allege in their amended complaint or otherwise state in the record, exactly what constitutes the improper conduct of J.B. Hunt, individually, J.B. Hunt, LLC, Tim Graham, individually, Tim Graham, LLC, Bill Schwyhart, individually, and Schwyhart Holdings, LLC, that was improper within the definition of AMI 404.” The circuit court further ruled that there was nothing in the record to support the allegations of wrongdoing, other than the fact that PHR sold the intended site of the water park to another buyer. We affirm the circuit court’s ruling because Appellants did not provide specific facts or evidence to support their contention that these individuals and their LLCs engaged in improper conduct. For this reason, we affirm on this point.
E. Restitution
For their fifth point on appeal, Appellants argue that the circuit court erred in finding that there was nothing in the record to support a claim for restitution and finding that there had been a waiver of this claim. They specifically assert that Buildings is entitled to restitution for expenses incurred prior to entering into the construction contract in anticipation of building the water park. In response, Appellees assert that the circuit court was correct in its ruling because Buildings failed to identify any such damage and is therefore not entitled to proceed on this claim unless and until it specifies its damages.
Regarding the doctrine of restitution, we have stated:
As an alternative to affirmance remedies, this court has allowed a defrauded party the remedy of restitution. This alternative remedy brings in the doctrine of election of remedies. Restitution is characterized as a disaffirmance remedy because it is awarded when the contract is revoked, rescinded, or disaffirmed. However, restitution differs from the two types of affirmance remedies just discussed. “Damages” refers to a money award compensating a plaintiff for losses. Dan B. Dobbs, Law of Remedies, § 1.1 (2d ed. 1993). Although an award of restitution may in fact provide compensation for the plaintiff in some cases, “[t]he restitutionary goal is to prevent unjust enrichment of the defendant by making him give up what he wrongfully obtained from the plaintiff.” Id. Restitution is thus measured by the defendant’s gain, not by the plaintiffs loss. Id.
Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 602, 864 S.W.2d 817, 823 (1993).
Here, the circuit court noted that, excluding an action for recission, a party can only seek restitution in Arkansas if there is a contract implied in fact or implied in law. Relying on Crosby v. Hardeman, Inc., 414 F.2d 1 (8th Cir. 1969), the circuit court found that there was nothing in the record to support a claim for restitution based upon a contract implied in fact because the parties entered into the operating agreement subsequent to the time that the expenses were incurred, and no provision was made by either party for the reimbursement of expenses prior to that date.
In Crosby, supra, the United States Eighth Circuit Court of Appeals stated:
An implied in fact contract may be inferred from the facts and circumstances of a given case, but an indispensable element of any contract, express or implied, is a promise.
In 1 Williston, Contracts § 3 (3d ed. 1957) contracts implied in fact are treated as true contracts arising from mutual agreements and intents to promise where the agreement and promise have not been expressed in words and it is noted at page 11, “The elements requisite for an informal contract, however, are identical whether they are expressly stated or implied in fact.” The difference between an expressed contract containing an actual promise and an implied contract where the contract is implied from the conduct of the parties is merely in the mode of manifesting assent and in the mode of proof. Both express and implied contracts are founded upon mutual assent of the parties and require a meeting of the minds. 17 C.J.S. Contracts § 3 at pp. 553-554 (1963).
Id. at 7. We have held that a contract implied in fact derives from the “presumed” intention of the parties as indicated by their conduct. Steed v. Busby, 268 Ark. 1, 593 S.W.2d 34 (1980) (citing Caldwell v. Mo. State Life Ins. Co., 148 Ark. 474, 230 S.W. 566 (1921)). An implied contract is proven by circumstances showing the parties intended to contract by circumstances showing the general course of dealing between the parties. Id.
In the present case, Buildings produced an affidavit from Ken Bailey setting forth a demand for restitution in the amount of $52,645.59 that it had advanced to the water park. Bailey’s affidavit states that Buildings spent $102,645.59 in expenses toward the water park project, but gave Appellees a credit for $50,000. Buildings wanted to be reimbursed for the $52,645.59 as well as $126,305 for a claim made by Professional Parks against Buildings related to the water park. Buildings claimed that these expenses were expended on the water park and the design of the water park incurred during the year 2003 through July of 2004.
The operating agreement was not executed until August 5, 2004, after Buildings incurred these expenses on the water park. There was no provision made by either party for reimbursement of expenses prior to that date. A promise to pay is an indispensable element of a contract, whether express or implied. See Crosby, supra. Therefore, there is nothing in the record to support a claim for restitution based on a contract implied in fact.
Alternatively, the circuit court found that a contract implied in law was only proper where the defendant benefited unjustly, and the law implied a contract to repay. In the present case, there has not been any unjust enrichment on the part of Schwyhart, Hunt, Graham, or their LLCs, which would entitle Buildings to restitution. Despite the fact that Buildings expended funds in anticipation of constructing the water park, none of the individuals or their LLCs have wrongfully obtained anything from Buildings. See Smith, supra. Therefore, we affirm the circuit court’s grant of summary judgment on Appellants’ restitution claim.
F. Promissory estoppel
For their sixth point on appeal, Appellants argue that the circuit court erred in finding that the defenses of waiver and estoppel barred the promissory-estoppel claim of KC and Buildings and that there were no facts to support a claim of promissory estoppel. Specifically, Appellants contend that individual defendants Graham and Schwyhart, whose companies have the same principals in both PHR and PMS, as well as principals in LP, made certain promises and representations to Appellants that the subject property was to be sold to them. Appellants assert that, in reliance on these promises, KC discontinued any attempt to find property for its water park and expended monies in anticipation of going forward with the project. In response, Appellees assert that the circuit court was correct in rejecting Appellants’ claim for promissory estoppel because there is no evidence in the record that the individuals or their respective LLCs ever made any promises to Appellants to sell the subject property to Ozark beyond what is stated in the operating agreement.
The black-letter law on promissory estoppel is found in the Restatement (Second) of Contracts:
A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.
See Rigsby v. Rigsby, 356 Ark. 311, 149 S.W.3d 318 (2004). We have held that the party asserting estoppel must prove it strictly, there must be certainty to every intent, the facts constituting it must not be taken by argument or inference, and nothing can be supplied by intendment. Ward v. Worthen Bank & Trust Co., 284 Ark. 355, 681 S.W.2d 365 (1985) (citing Julian Martin, Inc. v. Ind. Refrigeration Lines, Inc., 262 Ark. 671, 560 S.W.2d 228 (1978)). Further, we have stated that a party asserting estoppel must prove that in good faith he relied on some act or failure to act by the other party and, in reliance on that act, suffered some detriment. Peek v. Simmons First Nat’l Bank, 309 Ark. 294, 832 S.W.2d 458 (1992) (citing Worth v. Civil Serv. Comm’n, 294 Ark. 643, 646, 746 S.W.2d 364, 366 (1988)). Whether there was actual reliance and whether it was reasonable is a question for the trier of fact. See Rigsby, supra.
In the present case, following the filing of Appellees’ motion for summary judgment, Ken Bailey, President of KC, submitted an affidavit, which states:
We were told by Graham, Schwyhart and Hunt that they own the property under another company, Pinnacle Hills Realty, and they verbally agreed and verbally promised that they would sell it for $3,000,000.00 to the company we were going to form to own the Water Park.
Although we knew there was potentially other land where this water park might be located, after we made the deal with Hunt, Graham and Schwyhart, we discontinued looking for other properties and in particular we gave up looking at the 20 acres on Wagon Wheel Road which we could have purchased for $1,100,000.00. Had we not had the promises from Graham, Schwyhart and Hunt, we would have continued our search for property at other locations. The Manager of the Ozark Mountain Water Park, Pinnacle Management Services, sold the water park property without finding suitable replacement property. However, now that the water park property is not available there is no other viable, affordable property that exists along 1-540.
This self-serving affidavit is the only evidence presented by Appellants that would support their claim for promissory estoppel. The circuit court found that there was no foundation in Bailey’s affidavit that he was a real estate agent or otherwise qualified to assert his opinion with respect to the availability of affordable property along 1-540 for sale. Because our case law states that the facts constituting promissory estoppel must not be taken by argument or inference, and nothing can be supplied by intendment, see Ward, supra, we hold that Appellants have faffed to rebut proof with proof concerning the claim for promissory estoppel and affirm summary judgment on this point.
G. Piercing the corporate veil
For their seventh point on appeal, Appellants argue that the circuit court erred in finding that there was absolutely no evidence to support KC and Buildings’s claim that the corporate veil of the limited-liability companies should be pierced. Appellants specifically assert that piercing the corporate veil of these limited-liability companies presents issues of fact which preclude summary judgment. They further contend that, by piercing the corporate veil, the individuals, as managers of PMS, and the LLCs, as members of PMS, may be held liable for the actions of PMS and LIP. In response, Appellees assert that there is no evidence to support Appellant’s claim for piercing the corporate veil.
It is a nearly universal rule that a corporation and its stockholders are separate and distinct entities, even though a stockholder may own the majority of the stock. Anderson v. Stewart, 366 Ark. 203, 234 S.W.3d 295 (2006); First Commercial Bank v. Walker, 333 Ark. 100, 969 S.W.2d 146 (1998). In special circumstances, the court will disregard the corporate facade when the corporate form has been illegally abused to the injury of a third party. EnviroClean, Inc. v. Ark. Pollution Control & Ecology Comm’n, 314 Ark. 98, 858 S.W.2d 116 (1993); Don G. Parker, Inc. v. Point Ferry, Inc., 249 Ark. 764, 461 S.W.2d 587 (1971). The conditions under which the corporate entity may be disregarded or looked upon as the alter ego of the principal stockholder vary according to the circumstances of each case. Anderson, supra (citing Winchel v. Craig, 55 Ark. App. 373, 934 S.W.2d 946 (1996)). The doctrine of piercing the corporate veil is founded in equity and is applied when the facts warrant its application to prevent an injustice. Humphries v. Bray, 271 Ark. 962, 611 S.W.2d 791 (Ark. App. 1981). Piercing the fiction of a corporate entity should be applied with great caution. Banks v. Jones, 239 Ark. 396, 390 S.W.2d 108 (1965); Thomsen Family Trust v. Peterson Family Enters., 66 Ark. App. 294, 989 S.W.2d 934 (1999). The issue of whether the corporate entity has been fraudulently abused is a question for the trier of fact, and the one seeking to pierce the corporate veil and disregard the corporate entity has the burden of proving that the corporate form was abused to his injury. See Nat’l Bank of Commerce v. HCA Health Servs. of Midwest, Inc., 304 Ark. 55, 800 S.W.2d 694 (1990).
All corporations, regardless of the fact that the holders of stock and the officers of the corporation are identical, are separate and distinct legal entities; and it follows that, in the absence of facts on which liability can be predicated, one such corporation is not liable for the debts of another. See Mannon v. R.A. Young & Sons Coal Co., 207 Ark. 98, 179 S.W.2d 457 (1944). “The fact that the officers of one corporation are also officers of another does not make the corporations the same, nor the acts of one the acts of the other.” Id. (citing 19 C.J.S. Corporations § 789, at 166). “The fact that some of the stockholders in one company had also stock in each of the other companies, and the fact that the general managers and officers of one company were also general managers and officers of another company, did not make these companies the same corporation, nor the acts of one the acts of the other.” Id. (citing Fort Smith Light & Traction Co. v. Kelley, 94 Ark. 461, 127 S.W. 975 (1910)).
Appellants argue that'Appellees’ response to interrogatories and requests for production of documents support Appellants’ allegations that the corporate veil should be pierced. In their response to interrogatories, Appellees admit that (1) LIP technically has no members; (2) LIP has no operating agreement, books, or records; (3) LIP has no assets and that PHR paid for all of its bills; (4) that there are no contributions to capital made by any members of LIP or Pinnacle; and (5) there were no loans made by any member. However, based on our case law, PMS, LIP, and the individual LLCs are separate and distinct legal entities regardless of whether they include the same people. See Mannon, supra. Further, there have been no facts presented by Appellants upon which the individual LLCs can be held liable for the actions of PMS and LIP. Therefore, we affirm the circuit court’s grant of summary judgment on this point. Accordingly, because we hold that the circuit court erred in granting summary judgment on Buildings’s claim for breach of contract, we reverse and remand for further proceedings.
Reversed and remanded.
Hannah, C.J., concurs.
Brown and Imber, JJ., not participating. | [
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Per Curiam.
Appellant Bryan Dwight Olmstead brings this motion for bail pending appeal of his criminal contempt conviction in the Cleburne County Circuit Court. On April 10, 2008, Olmstead filed a petition for writ of certiorari with this court seeking to stay his trial, contending, inter alia, that he was being prosecuted by an unauthorized private prosecutor in violation of Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987). This court denied the writ without prejudice on April 10, 2008.
The following day, Olmstead was tried and convicted of criminal contempt and sentenced to a one-year term of imprisonment in the Cleburne County Jail, and fined $1,000. After the circuit court imposed sentence, and just before being remanded into the Sheriff s custody, Olmstead immediately moved for bail pending appeal. The circuit court denied Olmstead’s request, concluding that it “lack[ed] the authority” to issue bail pending appeal for criminal contempt. Olmstead filed a notice of appeal with this court on April 11, 2008.
While nothing in the Arkansas Constitution or the United States Constitution guarantees a person convicted of a crime the right to bail pending appeal, see Meeks v. State, 341 Ark. 620, 623, 19 S.W.3d 25, 26 (2000), it is clear that in certain circumstances, the circuit court has the authority to issue bail. Rule 6 of the Arkansas Rules of Appellate Procedure-Criminal provides in pertinent part:
(b)(1) When a defendant has been found guilty. . . [of] an offense ... and he is sentenced to serve a term of imprisonment, and he has filed a notice of appeal, the trial court shall not release the defendant on bail or otherwise pending appeal unless it finds:
(A) By clear and convincing evidence that the defendant is not likely to flee or that there is no substantial risk that the defendant wall commit a serious crime, intimidate witnesses, harass or take retaliatory action against any juror, or otherwise interfere with the administration of justice or pose a danger to the safety of any other person; and
(B) That the appeal is not for the purpose of delay and that it raises a substantial question of law or fact.
Ark. R. App. P.-Crim. 6(b)(1) (2007); see also Ark. Code Ann. § 16-91-110 (Repl. 2006). Here, Olmstead was found guilty of criminal contempt, was sentenced to a term of imprisonment and fined $1,000, and has filed a notice of appeal. Therefore, the circuit court has the authority to release Olmstead on bail if it finds that Olmstead has met the requirements of Ark. R. App. P.-Crim. 6(b). Accordingly, we remand to the circuit court and direct the circuit court to hold a hearing on bail within seven (7) days of the entry of this order.
Remanded.
Glaze and Imber, JJ., not participating.
When the defendant has been found guilty, pleaded guilty, or pleaded nolo contendere to capital murder, the trial court shall not release the defendant on bail or otherwise, pending appeal or for any reason. Ark.R.App.E-Crim.6(b)(2) (2007). When the defendant has been found guilty, pleaded guilty, or pleaded nolo contendere to murder in the first degree, rape, aggravated robbery, or causing a catastrophe, or kidnapping or arson when classified as a Class Y felony, and he has been sentenced to death or imprisonment, the trial court shall not release him on bail or otherwise, pending appeal or for any reason. Ark. R. App. P.-Crim. 6(b)(3) (2007). | [
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Per Curiam.
Appellant Robert Lee Williams, Jr., by and through his attorney, has filed a motion for rule on clerk. His attorney, Cathleen V. Compton, states in the motion that the record was tendered late due to a mistake on her part.
This court clarified its treatment of motions for rule on clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said that there are only two possible reasons for an appeal not being timely perfected: either the party or attorney filing the appeal is at fault, or, there is “good reason.” 356 Ark. at 116, 146 S.W.3d at 891. We explained:
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.
Id., 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 has erred and is responsible for the failure to perfect the appeal. See id.
In accordance with McDonald v. State, supra, Ms. Compton has candidly admitted fault. The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Motion granted. | [
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Per Curiam.
Appellant, Billy Kale Farmer, by his attorney, Leslie Borgognoni, has filed a motion for rule on the clerk. On June 15, 2001, the Benton County Circuit Court entered an order denying appellant’s motion for relief from an illegal sentence. Farmer timely filed a notice of appeal on July 13, 2001, and ultimately tendered the appellate record on October 12, 2001. However, due to a miscalculation in the due date, the record was lodged one day outside the applicable time limit.
Ms. Borgognoni admits in the instant motion that the record was tendered late due to a mistake on her part. We find that such an error, admittedly made by the 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). Accordingly, we grant the motion for rule on the clerk. A copy of this opinion will be forwarded to the Committee on Professional Conduct. Id. | [
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Per Curiam.
The Arkansas County Circuit Court denied appellant’s Rule 37 motion on May 21, 2001, and appellant filed his notice of appeal on June 19, 2001. The transcript was tendered to the clerk’s office on September 18, 2001, or one day after the ninety-day time limit had lapsed.
Appellant filed a motion for rule on the clerk to compel the clerk’s office to accept the transcript. In the motion, it is contended that the circuit clerk misled appellant’s attorney, Craig Lambert, into believing that September 18, 2001, was the deadline for filing the transcript. Mr. Lambert states that he faxed the notice of appeal to the circuit clerk on June 19, 2001. Mr. Lambert states that he also mailed the notice of appeal to the circuit clerk and included a stamped, self-addressed envelope for the circuit clerk to use to return the file-marked copies of the pleadings back to him. Mr. Lambert stated that he did both because he was not certain that the notice of appeal that he placed in the mail would be received and file-marked by the circuit clerk by June 20, 2001, which was the thirty-day deadline for filing the notice of appeal.
The circuit clerk sent a copy of the fax of the notice of appeal bearing a file-marked date of June 19, 2001, to the prosecuting attorney, the circuit judge, the circuit judge’s case coordinator, and the court reporter, but sent only a copy of the mailed notice of appeal bearing a file-marked date of June 20, 2001, to Mr. Lambert. The faxed copy of the notice of appeal that was filed-marked with a date of June 19, 2001, was not sent to Mr. Lambert. Mr. Lambert argues that because the circuit clerk failed to place a copy of the faxed pleading bearing a date of June 19, 2001 in the envelope along with a copy of the mailed pleading bearing a date of June 20, 2001, the circuit clerk misled him into believing that the ninety-day time limit began to run on June 20, 2001.
We have repeatedly held that all litigants, including those who proceed pro se, must bear responsibility for conforming to the rules of procedure or demonstrate good cause for not doing so. Sullivan v. State, 301 Ark. 352, 784 S.W.2d 155 (1990) (citing Peterson v. State, 289 Ark. 452, 711 S.W.2d 830 (1986)). Additionally, we have held that we will grant a motion for rule on the clerk when the attorney admits the record was not timely filed due to an error on his part. See, e.g., Guss v. State, 325 Ark. 521, 928 S.W.2d 336 (1996).
Here, Mr. Lambert does not admit fault on his part, but instead places blame on the circuit clerk’s office and contends that there is “good cause” for us to grant a belated appeal in this case. As authority for his argument, Mr. Lambert relies on our decision in Chiasson v. State, 304 Ark. 110, 798 S.W.2d 927 (1990), where we granted a belated appeal from the denial of a Rule 37 petition where the circuit clerk failed to prompdy provide the Rule 37 petitioner with a copy of the circuit court’s order denying relief. Id. We disagree with the interpretation and application of Chiasson, supra, to the facts of the case before us.
We note that the present case involves the circuit clerk’s failure to provide Mr. Lambert with the faxed copy of the notice of appeal, whereas Chiasson, supra, involved the circuit clerk’s failure to provide counsel with a copy of the circuit court’s order denying relief. We based our decision in Chiasson, supra, on Ark. R. Crim. P. 37.3(d), which imposes a mandatory duty upon the circuit clerk to promptly mail a copy of an order rendered on a petition filed under the rule to the petitioner. Ark. R. Crim. P. 37.3(d) provides:
(d) When an order is rendered on a petition filed under this rule, the circuit court shall promptly mail a copy of the order to the petitioner.
Id. Rule 37.3(d) does not impose a similar duty upon the circuit clerk regarding notices of appeal. Moreover, we have held that a statement that it was someone else’s fault, or no one’s fault, will not suffice. Whitney v. State, 334 Ark. 241, 973 S.W.2d 481 (1998) (citing Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986) (per curiam)); see also Rossi v. Rossi, 319 Ark. 373, 892 S.W.2d 246 (1995). Because Mr. Lambert fails to accept responsibility for not filing the transcript within the required time, appellant’s motion must be denied.
Appellant’s attorney shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, and upon fifing the same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.
Corbin, Brown, and Hannah, JJ„ dissent. | [
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Per Curiam.
Elizabeth Strom seeks permission to file a belated appeal with this court. Strom was convicted of manufacturing a controlled substance and possession of drug paraphernalia on February 15, 2000; the judgment and conviction order was entered on February 28, 2000. On May 10, 2000, Strom filed a pro se petition for postconviction relief under Ark. R. Crim. P. 37. The trial court denied that petition on July 20, 2000.
On April 12, 2001, Strom filed a pro se motion to vacate or set aside her convictions, alleging that her trial attorney, Stuart Vess, had failed to file a direct appeal despite her request that he do so. The partial record that accompanied the present motion does not reflect that any further action was taken on that motion. On August 28, 2001, within the eighteen months provided by Ark. R. App. P. — Crim. 2(e), Strom filed her motion for belated appeal, in which she argues that she should be entitled to an appeal now because Vess did not file a notice of appeal after her conviction in February of 2000. 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, 276 Ark. 313, 634 S.W.2d 140 (1982). In an affidavit attached to her motion, Strom contends that Vess refused to file a notice of appeal because he believed it to be futile and because she could not afford his fee for such representation. To date, Vess has not filed any kind of response to these allegations.
We remand this matter to the trial court for a hearing to settle the record in order to determine whether Strom had requested Vess to file a notice of appeal and whether Rule 16 has been complied with. The parties have thirty days from the date of this per curiam to settle these issues. | [
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Per Curiam.
Petitioner Donna Crump seeks a writ of prohibition directed to the Honorable Gayle K. Ford of the Polk County Circuit Court to prevent a trial on a charge of driving while intoxicated (“DWI”) because of a speedy-trial violation. This court previously granted Crump’s motion to stay the circuit court proceedings, and we now grant her petition for a writ of prohibition.
The record reflects that Crump was convicted in the Polk County Municipal Court of DWI on March 24, 2000. She subsequently lodged the transcript of the municipal court proceedings with the circuit court of Polk County on April 5, 2000. Crump also filed a notice of appeal on March 30, 2000, but the certificate of service reflected that it was only sent to the municipal court, and not to the prosecuting attorney. No trial date was ever set, and on August 9, 2001, Crump filed a motion to dismiss based upon the State’s failure to conduct a speedy trial.
A hearing on the issue of speedy trial was held on August 15, 2001, wherein Crump contended that the State had violated Ark. R. Crim. P. 28.1 and 28.2, by failing to try her within twelve months from the date of the filing of her appeal. Crump also alleged that the State would be unable to show that any of the time that had lapsed was excludable, and thus, could no longer try her. The State argued that Crump’s failure to provide it with notice of her appeal tolled the running of time for speedy trial. The trial court denied Crump’s motion, finding that the intent of the lower court rule regarding appeals is not to allow a defendant to file an appeal without telling anyone and then request a dismissal under the speedy-trial rule.
Crump now seeks a writ of prohibition to prevent her prosecution in circuit court on the DWI charge. In response to Crump’s petition, the State argues that Crump has failed to show that a writ is clearly warranted in this matter by failing to bring forth a record showing that the circuit court proceeding is wholly in excess of its jurisdiction. Specifically, the State asserts that the record submitted by Crump contains only the partial testimony of one of the two witnesses who testified at the hearing and does not include a record of the trial court’s oral ruling on the motion to dismiss. Our review of the record before us, however, reveals that there is a transcript of testimony from two witnesses, as well as a transcript of the circuit judge’s ruling from the bench.
Turning now to the merits of Crump’s claim, we first note that she has established a prima facie case of a speedy-trial violation by showing that over fifteen months passed between the filing of her appeal and the hearing on her motion to dismiss. The issue now is whether Crump’s failure to send the State notice of her appeal tolls the running of time under the speedy-trial rule.
The filing of an appeal to circuit court is governed by Arkansas Inferior Court Rule 9. See McBride v. State, 297 Ark. 410, 762 S.W.2d 785 (1989). Under Rule 9, an appeal to the circuit court is taken by filing a record of the municipal court proceedings within thirty days of the entry of judgment. The filing of a notice of appeal is not required to perfect a municipal appeal. Id. The time for speedy trial begins to run from the day an appeal is filed in circuit court. Moreover, this court has held that the primary burden is on the court and the prosecutor to assure that a case is brought to trial in a timely fashion. Glover v. State, 307 Ark. 1, 817 S.W.2d 409 (1991). A defendant has no duty to bring himself to trial, and the time for trial begins running without demand by the defendant. Id. Accordingly, in the instant matter, the time for speedy trial began to run on April 5, 2000, the day that Crump properly filed her appeal in circuit court. Because the State has failed to establish that there were any excludable periods, it is clear that Crump’s right to a speedy trial has been violated.
The writ of prohibition is granted.
Prohibition lies to the circuit court and not to the individual judge. Ford v. Wilson, 327 Ark. 243, 939 S.W.2d 258 (1997). Accordingly, we will treat the petition as one against the circuit court. Pike v. Benton Circuit Court, 340 Ark. 311, 10 S.W.3d 447 (2000). | [
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Jim Hannah, Justice.
Appellant Eugene M. Pfeifer, III, appeals the Pulaski County Chancery Court’s grant of summary judgment to Appellee City of Little Rock (“the City”) in this eminent domain proceeding taking approximately 2.9 acres of Pfeifer’s property for a fair market value of $400,000 for part of the park grounds for the Clinton Presidential Library, Complex, and Park District. The crux of Pfeifer’s argument on appeal is that the City did not need all of his property for the library and complex grounds and, that even if all of the property was needed, the creation of the library and complex is not a proper statutory purpose for taking the property. We affirm.
The idea for the creation of the library and complex began soon after President William J. Clinton was elected to the presidency in 1992. At that time, a group of his supporters began work to find property in Arkansas to establish the Clinton Presidential Center to house the presidential letters and archives from his administration. This Clinton Presidential Library Study Commission (the Commission) suggested approximately thirty sites in Little Rock and North Little Rock as possible locations for the complex and surrounding park areas, and ultimately decided on a location along the river front in downtown Little Rock east of Interstate 30. In relation to this proposal, the City began considering this location for a park area to be used in conjunction with the presidential library complex.
Ultimately, the City issued 10.5 million dollars in bonds to acquire the proposed property and prepare the property as “site ready” for building in anticipation that the William J. Clinton Presidential Library Foundation (the Foundation), the private funding arm of the library and complex project, would properly bid to lease a portion of the park area on which to build the library and complex buildings. The site encompasses approximately 26.6 acres of land. According to Little Rock Mayor Jim Dailey’s deposition testimony, while the Foundation and the City had not made a “commitment” to the project, it was anticipated that this would be the project that would anchor the proposed park grounds. This was further reflected in a letter from James L. “Skip” Rutherford, President of the Foundation, who wrote the City on April 21, 1998, confirming that the library would be located in Little Rock and outlining tentative plans for the lease of the property by the Foundation and the federal government. The letter indicated that the Foundation would lease a portion of the property from the City for ninety-nine years at the rate of $1.00 per year, and that federal government could use the property in perpetuity without transfer of title. However, Dailey also indicated that the City itself was not preparing any plans for a library complex nor consulting with any of the Foundation’s planners as Dailey indicated that the City’s sole purpose was acquiring the property for the park, with additional plans to follow later.
During 1997, 1998, and 1999, the City passed several resolutions affecting the river front property included in the proposed park areas. In Resolution 10,125 passed on November 7, 1997, the City declared a moratorium for a period of six months to stop the issuance of building permits or acceptance of rezoning applications for “the area of the Clinton Presidential Library” and for other purposes. The description of “The Clinton Presidential Park District” described the following general area as shown in the attached Exhibit B to that Resolution:
South of the Arkansas River, east of Interstate 30, north of the mid-line between 6th Street and Capitol Avenue west of Pepper Street and north of Capitol Avenue east of Pepper Street, and west of Pepper Street south of Capitol Avenue and west of Bond Street north of Capitol Avenue.
The larger map in Exhibit B contains the described property in the resolution. Two other maps were also included with the resolution, including the map in Exhibit A entitled “Proposed Clinton Presidential Library” making up a portion of the total 26 acres proposed to be taken by the City. Resolution 10,374, passed on October 6, 1998, continued the moratorium established in Resolution 10,125 with the same property description but lacking the larger map detailing that property description attached as Exhibit B in the 1997 moratorium resolution. Finally, on April 6, 1999, the City again continued the moratorium in Resolution 10,518, but amended the boundaries as “South of the Arkansas River, east of Interstate 30, north of East 4th Street and west of John Street” as indicated in that resolution’s Exhibit B. This amended description minimized the moratorium area; however, in all of these resolutions, the moratorium area continually included all of Pfeifer’s property.
The City began acquiring property in 1998 and 1999. On December 15, 1998, the City passed Resolution 10,441 providing authorization to begin eminent domain proceedings. This resolution named three parcels of property, one of which was listed as “115 East Second Street, Eugene M. Pfeifer, III.” Several months later after unsuccessfully negotiating with Pfeifer for the sale of his entire tract of property, the City filed a Complaint in Eminent Domain on July 30, 1999, claiming condemnation power over Pfeifer’s property totaling 2.944 acres along the southeast border of the proposed library complex site. In its complaint, the City indicated that it was acquiring the property for “the purpose of construction and operation of a public park and other lawful and permitted purposes.” Attached to the complaint was a description of Pfeifer’s property titled “(The former) MAY SUPPLY COMPANY PROPERTY, 115 East Second Street.” The description of the property includes two tracts. The first tract contained 29,109 square feet or .668 acres more or less, and the second tract contained 99,138 square feet or 2.276 acres more or less. This constituted all of Pfeifer’s property, and the old May Supply Company Building still exists on the entire piece of property. Pfeifer answered on August 17, 1999, disputing the purpose for which the City asserted for taking the property. Pfeifer did concede, however, that the $400,000 deposited with the court constituted the fair market value of the property.
Per Pfeifer’s request, the action was transferred from circuit to chancery court on September 22, 1999, for a determination of whether the Arkansas Legislature delegated to the City the power to condemn private property for the purpose of providing a site for the construction of a private facility. On December 22, 1999, Pfeifer filed a motion for summary judgment arguing that the true purpose of the condemnation proceeding was for the City to acquire property for a “building ready” site for the complex, and that this purpose is not one which the Arkansas Legislature delegated to the City for purposes of eminent domain. Pfeifer argued that, from the beginning, the acquisition of property was not for a city park, but rather only for the complex as indicated by the City’s complete lack of planning for the use of the property outside of the plans for the complex. On February 4, 2000, the City filed a cross- motion for summary judgment, arguing that the purpose for which the City wanted the land is a proper public purpose in that the City may take property to establish a park and for other proper purposes. Further, the City argued that Pfeifer’s issues are not ripe for review because no final determination had been made about any issues related to the complex or its location. The trial court issued its decision on May 4, 2000, denying both motions for summary judgment. The court determined that while the City claimed that' the property would be used for a public park, the City issued bonds to finance the property to be “site ready” for the complex although the City also represented that it would lease the property in an open-bid process despite the Rutherford’s proposal that the Foundation would lease the property. As such, the court found that because these facts were contradictory and because the City had provided no plans for its intended use of the park, the court could not determine whether the City would, in fact, use the land for a public park, although the concept of a public park might incorporate such structures and purposes as those proposed in the complex and surrounding grounds. Furthermore, the court also indicated that the parties missed the point as to whether the taking was for “other lawful purposes” as allowed under Ark. Code Ann. § 18-15-301(a) (Supp. 2001).
Given this ruling by the court, the City amended its complaint on May 12, 2000, indicating that the statutory grant of power of eminent domain to the City encompassed such an act of condemning property to create a park, to be known as the William Jefferson Clinton Presidential Park, which is intended to include the library and museum as well as other structures and recreational and educational facilities. The City more fully declared its intentions to the property including that it intended to maintain ownership while leasing portions to selected entities. The City once again attached the description of all of Pfeifer’s property as an exhibit to the complaint. Pfeifer answered on May 31, 2000, and denied that the proposed purpose is proper, that all of his property is necessary to accomplish the proposed purpose, that use of the property as a residence is a public purpose, and that the cited statutes allow the City to condemn his property for such proposed purposes. Pfeifer once again conceded that $400,000 was the fair-market value of the property.
On September 15, 2000, the City filed a renewed motion for summary judgment arguing that Ark. Code Ann. § 18-15-301 allows the City to take Pfeifer’s property for the purpose of constructing the park which will include the library and musuem and other educational and recreational facilities. Pfeifer did not file a cross-motion but instead filed a response arguing that there are questions of fact as to the true purpose behind the condemnation proceedings, and that such power of condemnation for these purposes has not been conferred to the City.
A hearing' was held on the City’s motion on November 3, 2000. Following the hearing, the court issued its decision granting the City’s motion for summary judgment on November 13, 2000, finding that the true intent of the taking of the 26.6 acres is for the purpose of creating a park which will include approximately 4 acres of buildings and other structures. The court specifically found that the evidence supported a finding that a “park” can include such a proposal, and that other Little Rock parks include structures such as War Memorial Stadium, MacArthur Park’s buildings, the zoo, and the tyiver Market addition. The court found that such a park and complex serve a public purpose, enhance the quality of urban life, and create an educational and cultural center for the citizens of the city and of the state. As such, the burden shifted to Pfeifer to show that there has been fraud, bad faith, or a gross abuse of discretion by the City, and that Pfeifer failed to do that. The court determined that the City does have the authority to lease the park property to a private entity under Ark. Code Ann. § 22-4-503 (Repl. 1996) where the proper statutory process is followed by the City. Finally, the court determined that the appraisal made of Pfeifer’s property included all parcels, including the south one-third of the property, and that this property was contained in the fair-market value assessment of $400,000 as agreed upon by Pfeifer.
Pfeifer filed his notice of appeal from summary judgment on November 17, 2000. The court issued an additional “Judgment” on December 15, 2000, incorporating its previous summary judgment and finding that the $400,000 in deposit with the court is the proper value of the property and that the money should be released. Furthermore, the court found that the title in land should be vested with the City in fee simple absolute, and that Pfeifer should pay taxes on the property to the date of the judgment. Finally, the court dismissed with prejudice all claims and counterclaims. Pfeifer filed his supplemental notice of appeal on December 21, 2000.
As we have often stated, summary judgment is to be granted by a trial court if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ark. R. Civ. P. 56; Estate of Donley v. Pace Indus., 336 Ark. 101, 984 S.W.2d 421 (1999); Mashburn v. Meeker Sharkey Financial Group, Inc., 339 Ark. 411, 5 S.W.3d 469 (1999). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, 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. 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 focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.
I. Necessity of Taking All of Pfeifer’s Property
In his first point on appeal, Pfeifer argues that the City never established the need to take all of his property for the creation of the presidential park, and that this lack of proof of necessity for taking his property for a public purpose leaves open a material question of fact to defeat summary judgment. Specifically, Pfeifer argues that a material issue of fact remains as to whether the City needed the southern one-third of his property south of Third Street. He argues that all of the documents and maps attached to the City’s resolutions do not show that the presidential park extends south of Third Street into the south one-third of his property. Therefore, the City failed to show a need for the property, and whether such need exists is a material question of fact.
The City responds by noting that Resolution 10,441 authorizing the eminent domain proceedings and the complaint in eminent domain specifically listed Pfeifer’s entire property as that to be taken, and Pfeifer conceded that $400,000 was a fair-market price for his entire property. The City notes that the burden is on Pfeifer to show that the property at issue is unnecessary, and Pfeifer failed to meet proof with proof to rebut the City’s contention that it needs the property for the presidential park. The City notes that, as a general rule, Pfeifer must show that there was fraud, bad faith, or gross abuse of discretion in the City’s choice of property, and, again, Pfeifer fails to carry this burden. Rather, the City argues that although Pfeifer offers testimony from City planners that it appeared that his property would be cut in half, Resolution 10,441, the complaint, and offer of compensation indicate that the City sought to take his entire property, that prior to the condemnation lawsuit Pfeifer negotiated the sale of his entire tract of property, and that the ordinances and maps, while arguably could have been more carefully drawn, never indicated that the properties shown were the total needed for the project.
The power of eminent domain is an attribute of, and inherent in, a sovereign state. Ark. Const, art 2, § 23; City of Little Rock v. Raines, 241 Ark. 1071, 411 S.W.2d 486 (1967); Young v. City of Gurdon, 169 Ark. 399, 275 S. W. 890; City of Little Rock v. Sawyer, 228 Ark. 516, 309 S.W.2d 30. Article 2, section 22, of the Arkansas Constitution provides that “[t]he right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.”
Statutes that relate to the power of eminent domain should be stricdy construed in favor of the landowner, see Columbia County Rural Dev. Auth. v. Hudgens, 283 Ark. 415, 678 S.W.2d 324 (1984); Loyd v. Southwest Ark. Util. Corp., 264 Ark. 818, 580 S.W.2d 935 (1979), and no more property of a private individual, and no greater interest therein, can be condemned and set apart for public use than is absolutely necessary. See Selle v. City of Fayetteville, 207 Ark. 966, 184 S.W.2d 58 (1944). The authority for the taking of private property for public use should be clearly expressed. Sawyer, supra. Broad discretion is vested in those to whom the power of eminent domain is delegated. State Highway Comm’n v. Saline County, 205 Ark. 860, 171 S.W.2d 60 (1943). In Gray v. Ouachita Creek Watershed Dist., 234 Ark. 181, 351 S.W.2d 142 (1961), the supreme court explained:
The State, by conferring on the District the power of eminent domain, necessarily left largely to the discretion of the District the location and area of the land to be taken. And one seeking to show that the taking has been arbitrary or excessive shoulders a heavy burden of proof in the attempt to persuade the Court to overrule the District’s judgment. Buford v. Upton, 232 Ark. 456, 338 S.W.2d 929; Woolard v. State Hwy. Comm., 220 Ark. 731, 249 S.W.2d 564; State Game & Fish Comm. v. Hornaday, 219 Ark. 184, 242 S.W.2d 342; State Hwy. Comm. v. Saline County, 205 Ark. 860, 171 S.W.2d 60; and Patterson Orchard Co. v. S.W. Ark. Util. Corp., 179 Ark. 1029, 18 S.W.2d 1028.
Gray, 234 Ark. at 183-85. This court stated in State Highway Com. v. Saline County, supra, that:
A broad discretion is necessarily vested in those to whom the power of eminent domain is delegated, in determining what property is necessary for the public purpose, with respect to the particular route, line, or location of the proposed work or improvement; and the general rule is that the courts will not disturb their action in the absence of fraud, bad faith, or gross abuse of discretion. The landowner may not object merely because some other location might have been made or some other property obtained which would have been suitable for the purpose.
State Highway Com. v. Saline County, 205 Ark. at 863. In determining whether the taking of property is necessary for public use, not only the present demands of the public, but those which may be fairly anticipated in the future, may be considered. Woollard v. Ark. State Highway Comm’n, 220 Ark. 731, 249 S.W.2d 564 (1952) (citing Rindge Co. v. County of Los Angeles, 262 U.S. 700, 67 L.Ed. 1186, 43 Sup. Ct. 689 (1923)).
The entry upon another’s land is not a right to be assumed by anyone — private citizen or public agency. Robinson v. Game & Fish Comm’n, 263 Ark. 462, 565 S.W.2d 433 (1978). A public entity’s right of eminent domain is a constitutional privilege granted with limitations. Id. First, there must be established the need for taking for public use or purpose. “This is a judicial question which the owner has a right to have determined by the courts.” Arkansas State Highway Comm. v. Alcott, 260 Ark. 225, 539 S.W.2d 432 (1976). Second, the condemnation of land must be according to the law. Robinson, supra. And, in reviewing the necessity of the taking for public use, the legislative determination is subject to review in cases of fraud, bad faith, or gross abuse of discretion. Woollard, supra.
Robinson v. Arkansas Game & Fish Commission was decided in 1978 after the court decided Woollard v. State Highway Commission in 1952. In Woollard, the court noted not only that the taking of property must be for a permissible purpose, but also that the judiciary may review in cases of fraud, bad faith, and gross abuse of discretion. However, in Robinson, the court only focused on the necessity and lawfulness of the taking, seemingly in conflict with the earlier Woollard decision. These cases, however, are harmonious in light of their facts. In Robinson, the court reviewed the Game and Fish Commission’s restraining orders, which had since expired, allowing Commission employees to enter onto private property to survey for a lake. While no “taking” had yet occurred, tins court addressed the issue to avoid future litigation and found that the statutory scheme required the Commission to obtain a temporary easement, which it had not done, prior to entering onto private land. This court did not conduct a review for fraud, bad faith, or gross abuse of discretion, but instead found that because the Commission had not complied with the statutory requirements to allow its employees to enter onto private property, such a taking could not be lawful until those conditions were met. That case was quite different from Woollard wherein the State Highway Department had already begun relocation of a twelve-mile segment of highway before landowners, whose property was being condemned, sought an injunction to enjoin the State Highway Department from relocating the highway. The Woollard court not only considered the necessity for the taking but also considered whether the decision to relocate the highway was fraudulent, in bad faith, or a gross abuse of discretion. This added consideration is proper where, as here, the eminent domain proceedings have lawfully begun according to statutory requirements.
In order to prevail on this issue, Pfeifer had to meet proof with proof to show that the City did not need all of his property and that the City abused its discretion, committed fraud, or acted in bad faith in condemning his property for its anticipated purpose of creating a presidential park. Because the City is given broad discretion in deciding what property is necessary now and for the future, see Woollard, supra, we believe that the City’s proposal and supporting documentation make it clear that Pfeifer’s entire property was properly taken by the City for the presidential park.
The proof provided by the City in its motion for summary judgment clearly shows that it needed all of Pfeifer’s property for the park. While Pfeifer is correct in noting that some of the maps attached to various resolutions passed by the City do not appear to include the south one-third of his property south of Third Street as part of the general park outline, the City’s additional documentation more than establishes that the City anticipated the need for all of Pfeifer’s property in the park project. In looking at all of the maps provided with each resolution passed by the City, and in the other schematics provided by the parties, it appears that the City and the architects for the Foundation anticipated that this one-third portion of Pfeifer’s property would be part of the park grounds. First, Pfeifer cites in his brief that the maps provided -with Resolutions 10,125, 10,374, and 10,518 never show that proposed land condemnation would go further south than Third Street. However, in looking at the maps attached to these Resolutions, the City did two things. First, the City created the Clinton Presidential Park District in Resolution 10,125 described by certain boundaries as:
South of the Arkansas River, east of Interstate 30, north of the mid-line between 6th Street and Capitol Avenue west of Pepper Street and north of Capitol Avenue east of Pepper Street, and west of Pepper Street south of Capitol Avenue and west of Bond Street north of Capitol Avenue.
This map clearly encompasses Pfeifer’s property in the building moratorium area. In the two later resolutions, the City continued the building moratorium in the district, and ultimately condensed the district area in Resolution 10,518 to the following area “generally described” as:
South of the Arkansas River, east of Interstate 30, north of East 4th Street and west of John Street.
While the “district” area definitely encompasses Pfeifer’s property, the actual park area is not as clear. The City apparendy mapped out a “general” boundary for the presidential park, which, as Pfeifer notes, appears not to extend south of Third Street. However, none of the resolutions state that this “park” area is set in stone, and, in fact, the resolutions clearly indicate that the area is a general area. In addition, in looking at the drawing created by the architects hired by the Foundation, all of Pfeifer’s property is included in the park area. Because the City was clearly acquiring the property in hopes that the Foundation would lease the land, this drawing is particularly important in establishing what land is necessary to meet the Foundation’s needs.
In addition to the maps detailing the general area of the presidential park, the City passed Resolution 10,441 in which the City approved the commencement of eminent domain proceedings to acquire, among others, Pfeifer’s property located at 115 East Second Street. While Pfeifer argued that this address only covered the north two-thirds of the property, his attorney admitted at oral arguments in this case that the May Supply Company building at that address rests not only on the north two-thirds of the property, but also on the south one-third of the property, making it difficult to “split” acquisition of the property into two parcels. In fact, this particular piece of information seriously undermines Pfeifer’s contention that the City did not need all of his property because dividing the property according to Pfeifer’s theory would cause the building to be split in half. Furthermore, Pfeifer negotiated with the City for sale of the entire tract of land prior to the City’s filing of the complaint in eminent domain, which included all of the property for acquisition. Pfeifer also admitted in his answer and amended answer, and does not dispute now, that $400,000 is the fair-market value for the entire tract of land.
Clearly, the City has consistently stated a need for Pfeifer’s property. Whether Pfeifer thinks the property was necessary is not the issue. Rather, whether the City believes that the property is necessary to accomplish the purposes of creating a park area, which it may do, is the issue. Given the broad discretion provided to the City, Pfeifer failed to meet proof with proof that the City wrongfully condemned his property under eminent domain proceedings.
II. Legislative Grant of Authority to the City to Take Pfeifer’s Property
In his second point on appeal, Pfeifer argues that the City did not have the authority to condemn his property under the guise of creating a city park only to then lease portions of the property to a private entity and the federal government for a library and meeting complex. Despite Pfeifer’s contention, the real question is whether the City’s assertion that this land will be a park encompasses the idea that the presidential library and complex can also sit on this site as part of the city park.
A municipality’s ability to act is derived only from those powers directly granted it by the state legislature or through the state constitution. This court stated in Raines, supra:
Cities are creatures of the state to aid it in the regulation and administration of local affairs. Woods v. Haas, 229 Ark. 1007, 320 S.W.2d 655; Portis v. Board of Public Utilities of Lepanto, 213 Ark. 201, 209 S.W.2d 864; City of Hot Springs v. Gray, 215 Ark. 243, 219 S.W.2d 930. They have no inherent powers and can exercise only (1) those expressly given them by the state through the constitution or by legislative grant, (2) those necessarily implied for the purposes of, or incident to, these express powers and (3) those indispensable (not merely convenient) to their objects and purposes. City of Piggott v. Eblen, 236 Ark. 390, 366 S.W.2d 192; McClendon v. City of Hope, 217 Ark. 367, 230 S.W.2d 57; Bain v. Ft. Smith Light & Traction. Co., 116 Ark. 125, 172 S.W. 843, LRA 1915 D 1021; Laprairie v. City of Hot Springs, 124 Ark. 346, 187 S.W 442; City of Argenta v. Keath, 130 Ark. 334, 197 S.W. 686, LRA 1918 B 888; Cumnock v. City of Little Rock, 154 Ark. 471, 243 S.W. 57, 25 ALR 608; Arkansas Utilities Co. v. City of Paragould, 200 Ark. 1051, 143 S.W.2d 11; Williams v. Dent, 207 Ark. 440, 181 S.W.2d 29; Deaderick v. Parker, 211 Ark. 394, 450, 200 S.W.2d 787.
Cities may act legally only within the powers derived from or delegated by the constitution and statutes. Neal v. City of Morrilton, 192 Ark. 450, 92 S.W.2d 208. The validity of their ordinances depends on the authority granted by the constitution or by the legislature. Incorporated Town of Paris v. Hall 131 Ark. 104, 198 S.W. 705; Nesler v. City of Paragould, 187 Ark. 177, 58 S.W.2d 677; Bennett v. City of Hope, 204 Ark. 147, 161 S.W.2d 186; City of Stuttgart v. Strait, 212 Ark. 126, 205 S.W.2d 35.
Raines, 241 Ark. at 1078. Because cities only have such power as given them by the legislature or by the constitution, we turn to the applicable statutes to determine whether the City’s actions here in taking Pfeifer’s property was a proper exercise of eminent domain. Ark. Code Ann. § 18-15-301, “Municipal corporations — Power to condemn generally,” confers upon a municipality the ability to condemn private property through eminent domain proceedings for the creation of a park, and states in pertinent part:
(a) The right and power of eminent domain is conferred upon municipal corporations to enter upon, take, and condemn private property for the construction of wharves, levees, parks, squares, market places, or other lawful purposes. . . .
Once the property is acquired through eminent domain to create a park or other municipal work, Ark. Code Ann. § 22-4-501 (Repl. 1996) and Ark. Code Ann. § 14-269-103 (Repl. 1998) allow a municipality to manage the property for the stated purpose in a number of different ways. Arkansas Code Annotated § 22-4-501, '“Disposition of property authorized,” states in pertinent part:
(b) (1) Any municipality in this state shall have the authority to lease to any individual, firm, or corporation municipal property comprising parks, playgrounds, golf courses, swimming pools, or other property which have been dedicated to a public use for recreational or park purposes, on such terms and conditions as may be desirable or necessary.
(2) Any municipality is also authorized to lease municipally-owned lands and facilities to a community college board to be used for educational purposes.
(3) Any lease under this subsection shall be for a period not to exceed ninety-nine (99) years.
Arkansas Code Annotated § 14-269-103, “General authority — Agreements with federal agencies -— Condemnation Proceedings,” states:
(a) Any municipality in this state is authorized to own, acquire, construct, reconstruct, extend, equip, improve, operate, maintain, sell, lease, contract concerning, or otherwise deal in or dispose of any land, buildings, improvements, or facilities of any and every nature whatever necessary or desirable for the developing and providing of public parks and facilities within or near the municipality including, without limitation, recreation areas, stadiums, auditoriums, arts and crafts centers, folklore centers, interpretative centers, camping areas, and other facilities so as to provide for the recreation and cultural needs of its inhabitants and to stimulate and encourage the economic growth of the municipality and its inhabitants; each such undertaking by a municipality shall sometimes be referred to in this subchapter as a “project”.
(b) (1) Any municipality in this state shall have the authority to lease to any individual, firm, or corporation municipal property comprising parks, playgrounds, golf courses, swimming pools, or other property which has been dedicated to a public use for recreational or park purposes, on such terms and conditions as may be desirable or necessary.
(2) Any municipality is also authorized to lease municipally owned lands and facilities to a community college board to be used for educational purposes.
(3) Any lease under this subsection shall be for a period not to exceed ninety-nine (99) years.
(c) Municipalities are authorized to enter into and carry out appropriate agreements with any agency of the Government of the United States of America, hereinafter referred to as “government,” pertaining to the accomplishment of the purposes authorized by this subchapter including, without limitation, loan agreements with the government for the borrowing of money and agreements pertaining to grants from the government.
Perhaps the greatest authority for condemning Pfeifer’s property in this case is an additional provision in this statute, which states:
(d)(1) In the event that necessary lands needed for the accomplishment of the purposes authorized by this subchapter cannot be acquired by negotiation, any municipality is authorized to acquire the needed lands by condemnation proceedings under the power of eminent domain.
Pfeifer argues that the court may look beyond the stated purpose of the condemnation — here, to create a park — to determine whether the City actually means to accomplish that goal or instead plans to fulfill some other unstated purpose. However, the chancery court posed the question best by asking whether the City can condemn property to create a park in which the Foundation, the federal government, the University of Arkansas system, or any other non-City entity can lease some of the property to accomplish their plans of a presidential library, park, and complex. And, considering the language of the above-cited statutes, the chancery court correcdy found that the City can create a “park” in which the presidential complex, or any other public complex (assuming another entity is the successful bidder) exists.
Arkansas Code Annotated section 22-4-101 (Repl. 1996) defines a “park” as “any area within the state which by reason of location, natural features, scenic beauty, or historical interest possesses distinctive physical, aesthetic, intellectual, creative, and social values.” While Pfeifer contends that the definition of a park cannot encompass a presidential library, archives, or complex, he again failed to meet proof with proof that the City’s proposal for such a complex could not meet the definition of a “park.” Rather, the City offered the affidavit of Bryan Day, Director of the Little Rock Parks Department, who indicated that the concept of a “park” can encompass many different ideas. Day, who is the President of the Arkansas Recreation Parks Association and on the Board of Trustees of the National Recreation and Parks Association, indicated that in Arkansas and other states, park properties include a variety of facilities and structures to serve a wide range of public needs and purposes. These include everything from football stadiums, such as War Memorial Field, to museums, planetariums, and theaters in parks such as San Diego, California’s Balboa Park, and St. Louis, Missouri’s Forest Park. Day also noted that should the proposed Presidential Library and Musuem buildings are ever abandoned, they will revert to the City. Day also indicated that even if the Commission decided not to locate -the Presidential Library and Complex at this site, the City would still create a park on this property.
Pfeifer particularly cites two cases, Hampton v. Arkansas State Game & Fish Commission, 218 Ark. 757, 238 S.W.2d 950 (1951), and Arkansas Game & Fish Commission v. Gill, 260 Ark. 140, 538 S.W.2d 32 (1976), for the propositions that 1) the City cannot state one purpose for the condemnation and then attempt to accomplish some other purpose, and 2) that the City cannot take property and then immediately resell it to a private entity.
In these two cases, the Game and Fish Commission claimed that it was attempting to improve or expand its conservation grounds in the Bayou Meto Wildlife Management area, a purpose allowed by statute, where, in reality, the Commission was really attempting to expand its hunting grounds, a purpose not allowed by statute. These cases, however, can be easily distinguished from the present case. First, the purpose proposed by the City to create a park and possibly lease some of the land to the Commission, the National Archives, or any other successful bidder is a purpose specifically anticipated under the controlling statutes. Second, from the start the City has proposed the park in anticipation that the presidential library and complex would be located on the grounds, assuming the Commission properly bids on the lease. This approach is unlike that in Hampton and Gill wherein the Game and Fish Commission stated one purpose for the condemnation but anticipated using the grounds for another purpose.
Pfeifer also argues that the City cannot take property that it later intends to resell to a private entity for a profit. In the case of Selle v. City of Fayetteville, 207 Ark. 966, 184 S.W.2d 58 (1944), this court noted that it becomes a claim of bad faith against a city if the landowner contends that the municipality intends to resell at a profit land it is attempting to condemn for the creation of an airport, a valid municipal work. The court in Selle did not reach the merits of that claim because the landowner did not raise the issue below to have it transferred to chancery court for those questions to be answered. However, the proposition remains that a municipality cannot claim one purpose for the use of the property and attempt to accomplish a different purpose, particularly when the hidden purpose is to condemn land and then resell it to a private entity.
By citing these cases, Pfeifer contends that the City’s purpose to create a park to house the presidential library and complex cannot be accomplished because the City would have to sell the property to the National Archives and Records Administration (NARA). He cites NARA’s proposed regulations which appear to require that, in order for the archives to be housed at any particular site, the property must be sold to the government or leased in perpetuity. Pfeifer, however, concedes that these regulations have not been adopted yet. Furthermore, because the bid process has not yet taken place, this issue currendy is not before this court. Overall, this court presumes that public officials will act lawfully and sincerely in good faith in carrying out their duties, and that they will not engage in subterfuge to accomplish their goals. Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001); Commercial Printing Co. v. Rush, 261 Ark. 468, 549 S.W.2d 790 (1977). The record does not reflect that the City has begun the bidding process to determine how and by whom the park property will be leased. Assuming it is the Foundation and the National Archives, the City will continue to remain under the obvious duty to follow the law and act in good faith in leasing the property to these entities or to any other successful bidder. Failure to do so only subjects the City to further litigation.
IMBER, J., not participating. | [
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Ray Thornton, Justice.
Appellant, Kenneth Ray Smith, was charged with committing the offenses of breaking or entering the K-Mart store located on Asher Avenue in Little Rock on August 3, 1999, with the purpose of committing a theft, in violation of Ark. Code Ann. § 5-39-202 (Repl. 1997), and theft of property by taking or exercising unauthorized control of a firearm, valued at less than $2500.00, belonging to K-Mart, in violation of Ark. Code Ann. § 5-36-103 (Repl. 1997). On March 8, 2000, appellant was convicted by a jury of breaking or entering, but he was acquitted of the theft of property charge. At the close of the sentencing phase, the jury sentenced appellant, as an habitual offender, to fifteen years in the Arkansas Department of Correction. Appellant now appeals his breaking or entering conviction.
At trial, the State produced a videotape and three witnesses as evidence in its case-in-chief. The videotape, which focuses on a gun display case, is taken in the sporting-goods department of K-Mart. The videotape reveals appellant passing in front of the gun cabinet six times. Appellant is first seen behind the counter in front of the gun case, and, while obscured by a sign on the right side of the screen, he stops briefly in front of the gun case and leaves. He later returns to the front of the counter from a shopping aisle. He walks in front of the counter three more times, looking at the gun case each time. It appears that he passes by the cabinet several times in order to see whether it is locked. Appellant is then seen behind the counter again and leaves. Appellant next appears a sixth time behind the counter. He looks back and forth two or three times, opens the glass door to the display case, removes a gun from the middle of the rack, and leaves to the left of the screen with the gun. In this sequence, the cabinet appears to open easily. Appellant does not appear to manipulate a lock; he merely opens the cabinet door and takes the gun out.
James Dickson, a detective for the Little Rock Police Department, testified that he assisted in the investigation of a breaking or entering and theft of a rifle from K-Mart. He testified that the videotape had been given to the police department by the K-Mart security officer. He further testified that the videotape had been maintained in the property room at the Little Rock Police Department, and that it was in the same or substantially similar condition as when he initially received it.
Cody Porter, a loss-control manager for K-Mart, testified that, on August 3rd or 4th, he was working at the K-Mart on Asher. He testified that his duties include watching the surveillance cameras for shoplifting and watching employees for employee theft. He further testified that K-Mart on Asher sells shotguns that are stored in the sporting goods department in a locked cabinet behind a cash register. He described the cabinet as having sliding glass doors that lock at the bottom with a multiple key. The general public is not allowed access to the cabinet, and an employee who has a key must assist a customer who wants access to a gun. He testified that customers, of course, are not allowed access to the guns without an employee present.
Mr. Porter further testified that a video surveillance camera was set up in the sporting goods department on August 2nd and August 3rd of 1999. The tape had run for approximately twenty-four hours, but no one was watching the video as it was being taped. Mr. Porter testified that he believed the locks had not been checked since August 2, 1999.
On August 4, 1999, Mr. Porter was notified that a gun was missing firm the K-Mart inventory. He then reviewed the videotape of the surveillance of the sporting goods department. The videotape was played at trial during Mr. Porter’s testimony. He testified that appellant was never given permission to open the cabinet. Mr. Porter testified that he believed appellant was able to get the gun cabinet open by prying the glass over the locked case. He determined that the glass had been pried “over the lock case that has the little lock on the bottom.” He further explained that “[t]he glass case was moved out over the lock where it could be entered into.” On cross-examination, Mr. Porter explained that the gun cabinet is always locked unless an employee unlocks it. Once the employee unlocks the case, the key cannot be removed from the lock. On redirect examination, Mr. Porter stated that the lock on the gun cabinet is about waist high, or three to four feet off the ground. He testified that a person would not have to bend down to touch the lock. No employees were present in the sporting goods department at the time to monitor the customers’ actions. Mr. Porter testified that the gun missing from the inventory was a 30.06 rifle.
Alvin Jackson, a Little Rock police officer, testified that he was on duty on August 4, 1999. On that day, he responded to a call from K-Mart to meet with Mr. Porter to review the tape of an alleged theft the day before. Mr. Jackson testified that while he reviewed the tape, he received information that appellant might be present in the store. He made contact with appellant, who was not acting suspicious, was cooperative, and did not attempt to flee. Mr. Jackson testified that appellant, the man whom he apprehended in the store on August 4th, appeared to be the same person in the video surveillance tape.
After the State’s case-in-chief, appellant moved for a directed verdict, arguing that there was no evidence that he unlawfully broke into or entered K-Mart. Appellant also moved for a directed verdict on the theft of property charge. The trial court denied both motions on the grounds that there was evidence that appellant entered the store with the intent to commit a theft. Appellant did not present a case-in-chief. After resting, appellant renewed his earlier directed-verdict motions on the same grounds. The trial court again denied the motions. The jury found appellant guilty of breaking or entering, but not guilty on theft of property. Appellant appeals his conviction of breaking or entering the K-Mart store.
For his sole issue on appeal, appellant argues that the trial court erred in denying his motion for a directed verdict based upon the sufficiency of the evidence. Specifically, he argues that the State failed to introduce substantial evidence to sustain the jury’s verdict finding him guilty of breaking or entering.
A motion for directed verdict is a challenge to the sufficiency of the evidence. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). 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). Only evidence supporting the verdict will be considered. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993). Circumstantial evidence provides the basis to support a conviction if it is consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999). Such a determination is a question of fact for the fact-finder to determine. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993).
Viewing the evidence in light most favorable to the State under Dixon, supra, we turn to the question whether there was substantial evidence to sustain appellant’s conviction of breaking or entering the K-Mart store. Arkansas Code Annotated § 5-39-202(a) (Repl. 1997) provides:
5-39-202. Breaking or entering.
(a) A person commits the offense of breaking or entering if for the purpose of committing a theft or felony he enters or breaks into any building, structure, vehicle, vault, safe, cash register, money vending machine, coin-operated amusement or vending machine, product dispenser, money depository, safety deposit box, coin telephone, coin box, fare box on a bus, or other similar container, apparatus, or equipment.
Id. Here, appellant “entered” the store during regular business hours. His photograph, captured by the surveillance camera, is clear and distinct. This evidence was sufficient to support the jury’s determination that he had entered the store.
The remaining question is whether appellant had the “purpose” to commit a theft when he entered K-Mart. A criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. E.g, Steggall v. State, 340 Ark. 184, 194, 8 S.W.3d 538, 545 (2000). Here, appellant’s purpose to commit a theft is proven by circumstantial evidence. The jury viewed a surveillance tape that shows appellant taking a gun from a gun cabinet in the sporting goods department of K-Mart. This videotape shows appellant approaching the gun cabinet six times, and walking around and behind the counter three times. The surveillance tape shows appellant during his last intrusion behind the counter, as he looked back and forth two or three times, opened the glass door to the display case, removed a gun, and walked away. Based upon the surveillance video of appellant’s actions before and at the time he took the gun from the display case, there was sufficient evidence for the jury to infer that his purpose in entering K-Mart was to commit a theft. This circumstantial evidence of appellant’s culpable mental state constitutes substantial evidence to sustain a guilty verdict. Steggall, supra.
Appellant argues that because he was acquitted of the theft of property charge, he could not have possessed the intent to commit theft in the K-Mart store. However, this argument runs contrary to our case law. The law is clear that “a defendant may not attack his conviction on one count because it is inconsistent with an acquittal on another count. . . . [T]he jury is free to exercise its historic power of lenity if it believes that a conviction on one count would provide sufficient punishment.” McVay v. State, 312 Ark. 73, 77, 847 S.W.2d 28, 30 (1993) (quoting United States v. Romano, 879 F.2d 1056 (2d Cir. 1989)).
We hold that there was substantial evidence to support appellant’s conviction of breaking or entering into the K-Mart store. Accordingly, the trial court’s denial of appellant’s motion for directed verdict is affirmed.
Affirmed.
Appellant argues that to commit breaking or entering, one must “unlawfully” enter a building with the purpose of committing a theft. This argument is misplaced, as there is no “unlawful” element in Ark. Code Ann. § 5-39-202. The word unlawfully appears in the burglary statute found at Ark. Code Ann. § 5-39-201, which specifically defines burglary in terms of entering or remaining in a structure unlawfully. See Ark. Code Ann. 5-39-201 (Repl. 1997). | [
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Annabelle Clinton Imber, Justice.
This is an illegal-exaction case brought pursuant to Article 16, §§ 11 and 13, of the Arkansas Constitution. The appellants, Bill Maddox, Bill Grace, Jerry Frisby, Melba Riggs, and Charles Beasley, on behalf of themselves and the citizens, residents, taxpayers, and utility ratepayers of the City of Fort Smith, appeal the summary-judgment order of the Sebastian County Chancery Court dismissing their illegal-exaction and unlawful-transfer claims against the appellee, the City of Fort Smith. The appellants claim that the City has been illegally spending its share of revenues collected under a countywide sales and use tax since 1999 when the City’s Board of Directors authorized the use of those tax revenues in a manner inconsistent with a resolution passed by the Board in 1994. Furthermore, the appellants allege that two transfers made from the City’s water and sewer operating fond to the City’s general fund and one transfer made from the City’s sanitation operating fund to the City’s general fund were unlawful.
We affirm the trial court’s grant of summary judgment as to the appellants’ first claim because the Board’s 1994 resolution does not bind the City in appropriating its share of the countywide sales and use tax revenues; rather, the City’s use of those tax revenues is governed by the Sebastian County ordinance that levied the sales and use tax for “general, municipal and county purposes.” With regard to the appellants’ second claim, we also affirm the trial court’s ruling that any challenge to the 1994 transfer of funds is barred by the statute of limitations. However, based upon the evidence submitted to the trial court, we conclude that genuine issues of material fact exist concerning whether the 1996 transfer of funds from the City’s water and sewer operating fund complied with the provisions of Ark. Code Ann. § 14-234-214(e) (Repl. 1998). Moreover, with respect to the legality of the 1996 transfer of funds from the sanitation operating fund to the City’s general fund, we cannot say that it is clear from the record or the law cited by the parties that the City is entitled to judgment as a matter of law. Accordingly, we reverse the trial court’s grant of summary judgment as to the appellants’ claims arising out of the 1996 transfers of funds and remand to the trial court for further proceedings.
I. Standard of Review
Summary judgment-should be granted only when it is clear that there is no issue of fact to be litigated, and the moving party is entitled to judgment as a matter of law. Rankin v. City of Fort Smith, 337 Ark. 599, 990 S.W.2d 535 (1999). Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, responses to requests for admission, and affidavits show that there is no genuine question of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Loewer v. Cla-Cliff Nursing and Rehab. Ctr., 344 Ark. 258, 39 S.W.3d 771 (2001). The burden of proving that there is no genuine issue of material fact is upon the moving party. Id. On appellate review, we must determine if summary judgment was proper based on whether the evidence presented by the moving party left a material question of fact unanswered. Id. This court views the proof in a light most favorable to the party resisting the motion, resolving any doubts and inferences against the moving party, to determine whether the evidence presented left a material question of fact unanswered. Rankin v. City of Fort Smith, supra.
II. Illegal Exaction
On April 19, 1994, the Quorum Court of Sebastian County approved Ordinance No. 94-10, which called for a special election on the question of a levy of a one percent (1%) sales and use tax for Sebastian County and authorized collection of the tax should it be approved by the Sebastian County electorate. The ordinance, which was published in a local newspaper on April 23, 1994, stated that the tax proceeds would be used for “general, municipal and county purposes.” The ballot title itself did not reflect any particular purpose for the tax. On the same day that the Sebastian County Court approved Ordinance No. 94-10, the Board of Directors of the City of Fort Smith adopted Resolution R-67-94, endorsing the passage of the one percent sales and use tax and stating that “if the citizens approve the countywide sales tax . . ., the Board of Directors commit to earmark the following percentages of the City’s share of the countywide sales tax as follows. ...” The resolution contained a specific list, by percentage, of uses the Board committed to make of the tax revenues: 33% to fire and police services; 33% for waste-water improvements; 10% to subsidize the cost of a new landfill in the sanitation program; 6% to improve library programs; 4% for senior citizen and park programs; 3% for capital improvements in the downtown and riverfront areas; 3% to public transportation services; and 8% to replace revenues lost due to the repeal of the City’s privilege license requirements. The resolution also promised that, if the countywide sales tax was approved, the Board would extend the one-cent city street, bridge, and drainage sales tax for another ten years; repeal the City’s privilege license requirements and refund the 1994 privilege license fees; and forego a sanitation rate increase scheduled for July 1, 1994. The tax was approved by a majority of the county electorate on June 21, 1994.
From the day collection of the one-percent sales tax first began until December 7, 1999, the City expended its portion of the county sales tax revenues consistently with the commitments made in the 1994 resolution. On December 7, 1999, the Board passed Ordinance No. 76-99, approving the City’s year 2000 operating budget. In that budget, the City’s share of county sales tax revenues that had been allocated in previous years to the water and sewer operating fund and to the sanitation operating fund, in accordance with the 1994 resolution, were reallocated to other municipal uses. The budget indicated that rate charges for water, sewer, and solid waste services would provide the necessary funding for those operations in the future.
In their first point on appeal, the appellants argue that the City violated Article 16, § 11, of the Arkansas Constitution when it stopped honoring the spending commitments made by the Board in Resolution R-67-94. Specifically, they claim that the City was bound by the 1994 resolution in its use of the tax revenues and that when the voters of the City of Fort Smith voted in favor of the countywide sales and use tax, they were entitled to rely on the Board’s commitments in the 1994 resolution. The Arkansas Constitution, at Article 16, § 11, provides: “No tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same; and no moneys arising from a tax levied for one purpose shall be used for any other purpose.” The intent of this language is for the object of tax revenues to be stated so that the revenues cannot be shifted to a use other than that authorized. Oldner v. Villines, 328 Ark. 296, 943 S.W.2d 574 (1997). Thus, both the county ordinance and the city resolution at issue here must be construed in light of the language in this constitutional provision.
We have recently addressed illegal-exaction claims under Article 16, § 11, of the Arkansas Constitution. See Maas v. City of Mountain Home, 338 Ark 202, 992 S.W.2d 105 (1999); Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226 (1998); Oldner v. Villines, 328 Ark. 296, 943 S.W.2d 574 (1997). In Oldner, neither the county ordinance levying the sales tax nor the ballot title referenced a purpose for which the tax proceeds were to be used. Oldner v. Villines, 328 Ark. 296, 943 S.W.2d 574. We held in that case that, “[w]hen a tax is enacted by the General Assembly or approved by a vote of the people without the statement of a purpose, the resulting revenues may be used for general purposes.” Id. at 305, 943 S.W.2d at 579. This case differs from Oldner in that the levying ordinance did specify that the funds collected by the tax would be for “general, municipal and county purposes,” although the ballot tide did not reflect any particular purpose for the tax.
The Daniel case presented a reverse image of the fact pattern in Oldner: five specific purposes for the use of tax revenues from a county sales tax were stated in the county ordinance levying the tax and on the ballot. Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226. This court held that any use of the sales tax revenues for purposes other than those provided in the levying ordinance and on the ballot constituted an illegal exaction in violation of Article 16, § 11, of the Arkansas Constitution. Id. We also recognized in that case that the voters were entitled to rely upon the information provided to them in the levying ordinance and on the ballot when casting their votes. Id.
In Maas, the city ordinance levying a one-percent sales tax listed specific restrictions on the use of the tax proceeds, but the ballot contained no specific uses for funds collected by the tax. Maas v. City of Mountain Home, 338 Ark. 202, 992 S.W.2d 105. This court held that, where the city ordinance contained specific, exclusive purposes for the tax and where the ordinance was published in its entirety so as to inform the electorate of its provisions, voters were entitled to rely on the language of the levying ordinance, and the absence of the purposes from the actual face of the ballot did not transform the tax into a general-purpose sales tax. Id. Accordingly, we concluded that an illegal exaction had occurred where the city used tax revenues for purposes other than those specifically listed in the levying ordinance. Id.
Here, we are asked to decide whether the designation in a city resolution of specific purposes for the City’s portion of a countywide sales and use tax is sufficient under Article 16, § 11, of the Arkansas Constitution to determine the purpose of the tax and prohibit contrary uses. The appellants contend that Resolution R-67-94 qualifies as a “law imposing a tax” under Article 16, § 11, such that the City’s portion of the tax revenues can only be spent for the specific purposes listed in that resolution. According to the appellants, when the City stopped using its portion of the revenues for those specific purposes, an illegal exaction occurred. Though the appellants acknowledge that the county ordinance stated the tax revenues were to be used for “general, municipal and county purposes,” they argue that the city resolution should control the City’s use of its portion of the county tax revenues.
In Oldner, we held that, for purposes of construing Article 16, § 11, the “law imposing a tax” means the levying ordinance, rather than the enabling legislation. Oldner v. Villines, 328 Ark. 296, 943 S.W.2d 574. The appellants propose an expanded meaning for that phrase in Article 16, § 11, so that “the complete spectrum of relevant official information”- would have to be considered in determining the stated purpose for tax revenues. Such a proposal goes far beyond and, in fact, ignores the plain language in the constitution that refers only to the “law imposing a tax” and nothing more. This court has stated that, when the language of the Constitution is plain and unambiguous, each word must be given its plain, obvious, and common meaning. Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226. “Neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision.” Id. at 499, 966 S.W.2d at 231 (quoting Foster v. Jefferson County Quorum Court, 321 Ark. 105, 108, 901 S.W.2d 809, 810 (1995)).
It is patently clear, based upon the plain language in Article 16, § 11, of the Arkansas Constitution and our recent case law interpreting that provision, that Sebastian County Ordinance No. 94-10 was the levying ordinance, or the “law imposing a [countywide sales] tax.” Likewise, there is no doubt that a city resolution cannot be a levying ordinance for a countywide sales tax. In other words, Resolution R-67-94 was not the “law imposing a [countywide sales] tax.” And, even if Resolution R-67-94 were deemed substantively equivalent to an ordinance, it still would not be the ordinance or law imposing the tax. In short, the appellants have failed to cite any authority for the proposition that a city resolution can contravene or supersede the purposes stated in a county ordinance levying a countywide sales tax.
For the above-stated reasons, we hold that Resolution R-67-94 was not the “law imposing a tax” under Article 16, § 11, of the Arkansas Constitution, and, thus, the City is not bound by that resolution in appropriating its share of the countywide sales and use tax revenues. “It is only when a diversion of tax revenues occurs from a specific purpose that has been authorized to an unauthorized purpose that an illegal exaction occurs.” Oldner, supra at 305, 943 S.W.2d at 579. According to Sebastian County Ordinance No. 94-10, the tax proceeds were to be used for “general, municipal and county purposes.” Because no funds were used for any purpose other than that authorized in the county levying ordinance, no illegal exaction occurred. We affirm the trial court on this point, as there is no genuine issue of material fact and the City is entitled to prevail as a matter of law.
III. Transfers of Funds from Utility and Sanitation Accounts
The appellants also allege that three transfers of funds to the City’s general fund were unlawful. The first challenged transfer occurred on September 6, 1994, when the City transferred $500,000 from the “unobligated balance” of the water and sewer operating fund to the general fund. The ordinance indicated that the money was appropriated as a “temporary loan” for funding fire equipment purchases. No date was set for repayment of the loan. In 1999, through its adoption of a year 2000 budget, the City relinquished the loan as a debt of the general fund. The ordinance granting relinquishment stated that the cost of the 1994 appropriation would be charged to “the surplus waterworks revenues of the Water and Sewer Operating Fund.”
The trial court ruled that the appellants’ challenge to this transfer was barred by the statute of limitations. It found that, because the statute commenced running from the date the funds were transferred in 1994, the applicable three-year limitations period had expired. The appellants, on the other hand, contend that the cause of action did not expire until the loan was canceled on December 7, 1999. Thus, they assert that the cause of action was not time barred.
We have previously held that the statute of limitations begins to run on a debt at its maturity. Smith v. Milam, 195 Ark. 157, 110 S.W.2d 1062 (1937). Here, the $500,000 loan stated no date for maturity. Where no time is set for the payment of a debt, the debt is in law payable on demand. Jonesboro Investment Corp. v. Cherry, 239 Ark. 1035, 396 S.W.2d 284 (1965). A debt payable on demand is due immediately, so that an action can be brought at any time, without any other demand than the suit, and the statute of limitations begins to run at once. Sturdivant v. McCorley, 83 Ark. 278, 103 S.W. 732 (1907). We therefore conclude that the temporary loan made to the general fund in 1994 was due on demand, the statute of limitations on that debt began to run immediately, and the collection of the debt was barred by the three-year statute of limitations in September 1997, well before this lawsuit was filed. Accordingly, we affirm the trial court’s ruling that the challenge to this transfer was barred by the statute of limitations.
The statute of limitations would not, however, bar the appellants’ challenge to the two fund transfers made in 1996. Both those transfers were accomplished by an ordinance that reflected the monies were available from each fund’s county sales-tax allocation. On April 16, 1996, a $2,000,000 loan was made to the general fund from the water and sewer operating fund to be used in the funding of a police facility. That loan was to be repaid in equal installments of $333,333 over a six-year period. Installment payments were made on the loan in 1997 and 1998, but no further payments were made. The year 2000 budget approved by the Board indicated that the remaining debt was “formally rescinded.” A $2,000,000 loan was also made to the general fund from the sanitation operating fund to be used in funding the police facility. As with the loan from the water and sewer operating fund, the general fund was to repay the sanitation operating fund in equal installments of $333,333 over a six-year period. Installment payments were made in 1997 and 1998, but no payments were made after that date. The year 2000 budget approved by the Board also indicated that this debt was “formally rescinded.”
As to these transfers of funds in 1996, the appellants make several arguments. First, they allege there were no “surplus funds” as defined in Ark. Code Ann. § 14-234-214(e)(1) (Repl. 1998). Second, they contend that excessive fees constitute unlawful taxes. Third, they argue that, even if a surplus existed, it was not disbursed properly under the statutory scheme set out in Ark. Code Ann. § 14-234-214(e). Next, they assert that the controlling statutes, Ark. Code Ann. §§ 14-234-214, 14-235-221, and 14-235-223 (Repl. 1998) are unconstitutional. Finally, they suggest that the transfers were illegal because (a) the water and sewer operating fund and the sanitation fund are special purpose funds that cannot be used for any purpose other than water, sewer and sanitation, respectively; and (b) Resolution R-67-94 restricts the use of those funds.
As to the first argument, the record reflects the following evidence regarding whether the transferred funds were unencumbered, or surplus. An affidavit by Kara Bushkuhl, Finance Director of the City of Fort Smith, states that the $500,000 appropriation authorized in 1994 “was charged to surplus waterworks revenues of the Water and Sewer Operating Fund as defined and authorized by Ark. Code Ann. § 14-234-214(e)(3)(D).” Ms. Bushkuhl also states in the affidavit that the 1996 appropriations of $2,000,000 from the water and sewer operating fund and $2,000,000 from the sanitation operating fund were of “unencumbered surplus funds.” However, Ms. Bushkuhl does not indicate that she used any statutory provision to determine whether a surplus existed in 1996. The statutory provision cited in her affidavit in connection with the 1994 appropriation, section 14-234-214(e)(3)(D), only indicates that a surplus can be used for other municipal purposes; whereas, the definition of “surplus funds” is set forth in Ark. Code Ann. § 14-234-214(e)(1): those funds “in excess of the operating authority’s estimated cost of maintaining and operating the plant during the remainder of the fiscal year then-current and the cost of maintaining and operating the plant during the fiscal year next ensuing.” This statutory definition of “surplus funds” is not referenced anywhere in Ms. Bushkuhl’s affidavit. Furthermore, the water and sewer operating fund reported a deficiency of $1,078,459 in fiscal year 1996 and $1,491,915 in fiscal year 1997. The sanitation operating fund also reported deficiencies of $617,188 in fiscal year 1996 and $359,306 in fiscal year 1997. Based upon this record, we conclude that a question of fact remains regarding whether “surplus funds,” as defined in Ark. Code Ann. § 14-234-214(e)(1), existed in the City’s utility and sanitation accounts prior to the 1996 transfers. We therefore reverse the trial court’s grant of summary judgment on this point.
Next, the appellants point out that section 14-234-214(e) only applies to waterworks systems and does not authorize the transfer from the sanitation operating fund. While we might agree that this particular section does not apply to sanitation funds, such a conclusion does not necessarily mean that the transfer from the sanitation operating fund was unlawful. The appellants have cited no statutory authority or case law indicating that the transfer from the sanitation fund is prohibited. We have 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, 192-193, 961 S.W.2d 712, 722 (1998) (supplemental opinion denying rehearing). Though no facts appear to be disputed as to the transfer of funds from the sanitation operating fund to the general fund, the facts before us do raise a question as to whether the City is entided to judgment as a matter of law.
Ms. Bushkuhl stated, in her affidavit, that it is a generally accepted accounting practice, where permitted by law, for municipalities to supplement utility fund income by sales tax revenues and then utilize surplus revenues of the utility fund for other municipal purposes. Both parties appear to assume that the City’s sanitation fund is a utility fund such that it would be governed by the general accounting principles that Ms. Bushkuhl described as being applicable to utilities. Such an assumption, however, may not be warranted under Arkansas law. The City refers us to case law standing for the proposition that surplus utility fund revenues may be used for other municipal purposes. See Adams v. Bryant, 236 Ark. 859, 370 S.W.2d 432 (1963); City of Harrison v. Braswell, 209 Ark. 1094, 194 S.W.2d 12 (1946); Johnson v. Dermott, 189 Ark. 830, 75 S.W.2d 243 (1934). Flowever, none of those cases involve a sanitation fund. Thus, we are unable to conclude that the City is entitled to judgment as a matter of law with respect to the legality of the 1996 transfer of funds from the sanitation operating fund to the City’s general fund. Accordingly, we reverse the trial court’s grant of summary judgment on this point as well.
For their second argument, the appellants contend that excessive fees constitute unlawful taxes. They point to the City Finance Director’s statements that water rates had to be increased to meet operational needs, and assert there can be no surplus funds where revenues must be increased to meet the necessary expenses of operation. The argument then shifts to an assertion that, if a surplus existed in the utility funds, the revenue generating the surplus is a tax. The appellants point to cases where we have held that a fee must be fair and reasonable and bear a reasonable relationship to the benefit conferred by the services in order not to be denominated a tax. See Harris v. City of Little Rock, 344 Ark. 95, 40 S.W.3d 214 (2001); Barnhart v. City of Fayetteville, 321 Ark. 197, 900 S.W.2d 539 (1995). After citing these cases, the appellants jump to the conclusion that a fee is unreasonable, and therefore a tax, if it exceeds the costs of providing such services. They cite no authority for such a proposition, and this court has never made such a holding. When an appellant neither cites authority nor makes a convincing argument, and where it is not apparent without further research that the point is well taken, we will affirm. Mikel v. Hubbard, 317 Ark. 125, 876 S.W.2d 558 (1994).
We turn now to the appellants’ third argument. They suggest that, if there was a surplus of funds, it was transferred unlawfully because the City did not disburse the surplus funds in accordance with the progressive order set out in Ark. Code Ann. § 14-234-214(e):
(1) If any surplus is accumulated, in the operation and maintenance fund of the waterworks system which shall be in excess of the operating authority’s estimated cost of maintaining and operating the plant during the remainder of the fiscal year then-current and the cost of maintaining and operating the plant during the fiscal year next ensuing, the excess may be by the operating authority transferred to either the depreciation account or to the bond and interest redemption account, as the operating authority may designate.
(2) If any surplus is accumulated in the depreciation account over and above that which the operating authority shall find may be necessary for probable replacements needed during the then fiscal year, and the next ensuing fiscal year, the excess may be transferred to the bond and interest redemption account.
(3) If a surplus shall exist in the bond and interest redemption account, it may be applied by the operating authority, in its discretion, subject to any limitations in the ordinance authorizing the issuance of the bonds, or in the trust indenture:
(A) To the payment of bonds that may later be issued for additional betterments and improvements;
(B) To the purchase or retirement, insofar as possible, of outstanding unmatured bonds payable from the bond and interest redemption account, at no more than the fair market value thereof;
(C) To the payment of any outstanding, unmatured bonds, payable from the bond and interest redemption account that may be subject to call for redemption before maturity;
or
(D) To any other municipal purpose.
Ark. Code Ann. § 14-234-214(e) (Repl. 1998). (Emphasis added.)
According to the appellants, this statute mandates that surplus funds, as defined in section 14-234-214(e)(1), be applied in a particular progressive order. Under section 14-234-214(e)(1), surplus funds may be first applied either to the depreciation account or to the bond and interest redemption account. Next, pursuant to section 14-234-214(e)(2), if any surplus is accumulated in the depreciation account, the excess may be applied to the bond and interest redemption account. A plain reading of the statute supports the appellants’ statutory interpretation up to this point. The appellants then proceed to assert that, under section 14-234-214(e)(3), a surplus in the bond and interest redemption account must be applied as follows: first to the payment of bonds that may later issue for improvements; then to the purchase or retirement of outstanding unmatured bonds; then to the payment of any outstanding, unmatured bonds that may be subject to call for redemption before maturity; and then to any other municipal purpose. We disagree.
A plain reading of Ark. Code Ann. § 14-234-214(e)(3) indicates that any surplus remaining in the bond and interest redemption account may be applied, in the discretion of the operating authority and subject to ordinance and trust limitations, to any one of the four listed uses in section 14-234-214(e)(3). The statute follows a progressive order from section 14-234-214(e)(1) through section 14-234-214(e)(3), but once a surplus is found to exist in the bond and interest redemption account, the operating authority then has discretion to apply the surplus to any one of the four options listed in that section. The disjunctive “or” indicates clearly that any of the four options may be chosen in the discretion of the operating authority. Thus, if a surplus exists in the bond and interest redemption account, the operating authority may apply the surplus to “any other municipal purpose.” Once again, based on the record in this case, we hold that genuine issues of material fact exist as to whether the City complied with the provisions of Ark. Code Ann. § 14-234- 214(e) when it transferred the alleged surplus funds to the general fund in 1996. For the reasons already stated, we reverse the grant of summary judgment as to the appellants’ claims arising out of the 1996 transfers of funds.
In arguing that the statutory scheme was not followed, the appellants further contend that the provisions of Ark. Code Ann. §§ 14-235-221 and 14-235-223 (Repl. 1998) were not followed. This argument was not addressed by the trial court. Accordingly, we do not reach the merits of the argument on appeal. It is well-settled that failure to obtain a ruling from the trial court is a procedural bar to our consideration of the issue on appeal. Barker v. Clark, 343 Ark. 8, 33 S.W.3d 476 (2000). It is incumbent upon the appealing party to obtain a ruling on an issue to preserve it for review. Ross Explorations, Inc. v. Freedom Energy, Inc., 340 Ark. 74, 8 S.W.3d 511 (2000).
The fourth argument raised by the appellants is that the City’s compliance with sections 14-234-214, 14-235-221, and 14-235- 223 is irrelevant because those statutes are unconstitutional. They acknowledge, however, that the trial court did not rule on the constitutionality of the statutes. Without a ruling from the trial court on this issue, we cannot reach the merits of the argument on appeal. See Barker v. Clark, 343 Ark. 8, 33 S.W.3d 476.
In their final argument, the appellants suggest that the fund transfers were illegal because the water and sewer operating fund and the sanitation operating fund are special purpose funds that cannot be used for any purpose other than water, sewer and sanitation, respectively. They contend that “forgiveness of the . . . loans [made by those funds] to the general fund is a diversion of the revenue collected for one purpose to another resulting in a violation of Ark. Const, art. XVI, § 11.” However, the appellants cite no legal authority in support of this argument. We have stated on occasions too numerous to count that we will not consider the merits of an argument if the appellant fails to cite any convincing legal authority in support of that argument, and it is otherwise not apparent without further research that the argument is well taken. Ouachita Trek Development Company v. Rowe, 341 Ark. 456, 17 S.W.3d 491 (2000); Matthews v. Jefferson Hospital Ass’n, 341 Ark. 5, 14 S.W.3d 482 (2000). To the extent that the appellants rely upon Resolution R-67-94, the argument merely restates the first point on appeal. As explained under Part II of this opinion, Resolution R-67-94 is not the law imposing the tax. Thus, the use of funds in contravention of the purposes set out in that resolution is not an illegal exaction.
Affirmed in part; reversed and remanded in part.
In their reply brief, appellants also assert that the City made a commitment to its citizens through Resolution R-67-94 and that the City should be estopped from abandoning that commitment. We will not address this issue, as it was raised before us for the first time in the appellants’ reply brief. We do not consider arguments raised for the first time in a reply brief because the appellee is not given a chance to rebut the argument. Schueck Steel, Inc. v. McCarthy Bros., 289 Ark. 436, 711 S.W.2d 820 (1986).
Sebastian County Ordinance No. 94-10 was published in its entirety on April 23, 1994.
Resolution R-67-94 was not published in its entirety following its adoption by the Board on April 19, 1994.
Resolution R-67-94 was an electioneering effort by the Board in advance of the vote by the county electorate on the proposed countywide sales tax. If the City’s voters disagree with the Board’s subsequent allocation of tax revenues in 1999, political consequences will surely follow.
On appeal, the appellants do not contest the application of Ark. Code Ann. § 14-234-214(e) to the City’s sewer fund. It is undisputed that the City has operated its water and sewer systems as a consolidated utility system for a number of years. The Arkansas General Assembly has recognized the practice of consolidating water and sewer systems in Ark. Code Ann. §§ 14-237-101 — 14-237-113 (Repl. 1998). | [
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W.H. “Dub” Arnold, Chief Justice.
Appellant Bank of Arkansas, N.A., appeals the Benton County Circuit Court’s award of summary judgment to appellee First Union National Bank (First Union) and dismissal with prejudice of First Union from the case. We affirm.
The parties in this lawsuit include Bank of Arkansas, First Union, and MANA Corporation (MANA). Bank of Arkansas contends that the events leading up to this lawsuit began on October 10, 1997, when First Union credited MANA’s account at Bank of Arkansas in the amount of $150,000 as payment by MCI WorldCom under a contract between it and MANA. However, on October 14, 1997, First Union reversed the deposit at the direction of its client, MCI WorldCom, within five days pursuant to National Automated Clearing House Association (NACHA) Rule 2.5.1 which states:
An Originator may initiate an entry to correct an erroneous credit or debit entry previously initiated to a Receiver’s account. The reversing entry must be transmitted to the Receiving ACH Operator in such a time as to be transmitted or made available to the RDFI by midnight of the fifth banking day following the setdement date of the erroneous entry. For this section 2.5 only, an erroneous entry is defined as an entry that (1) is a duplicate of an entry previously initiated by the Originator or ODFI; (2) orders payment to or from a Receiver not intended to be credited or debited by the Originator; or (3) order payment in a dollar amount different than was intended by the Originator.
In short, First Union only had five days to reverse the credit to MANA’s account at Bank of Arkansas, which it did, and the reversal had to be for one of the three reasons: a duplicate entry, payment not intended to be credited or debited by MCI WorldCom, or an erroneous entry of an unintended dollar amount. Bank of Arkansas notified MANA of this entry reversal on October 17, 1997. Until this lawsuit arose, MANA did not complain about the entry reversal or attempt to change that reversal; further, MANA never sued MCI WorldCom on the underlying contract it had with MCI nor sought to implead MCI WorldCom into the case. In other words, no problem with this reversal of funds was ever asserted until this lawsuit, and MCI WorldCom has never been made a party to the case.
About seven months later, MANA’s Bank of Arkansas account showed a balance of $3,700.72 on April 2, 1998. On April 6, 1998, at the direction of MCI WorldCom, First Union deposited $175,169 in MANA’s Bank of Arkansas account, and on that same day MANA directed Bank of Arkansas to transfer the total amount to MANA’s account at the Bank of Bentonville. Bank of Arkansas completed this transfer but faded to debit MANA’s account. On April 27, 1998, First Union deposited another $39,300 in MANA’s Bank of Arkansas account, and MANA then directed Bank of Arkansas on that same day to transfer $214,585.61 into MANA’s Bank of Bentonville account, which Bank of Arkansas did.
At the end of that day, Bank of Arkansas apparently realized its error of failing to debit the April 6, 1998, transfer from MANA’s Bank of Arkansas account to MANA’s Bank of Bentonville account. Flowever, Bank of Arkansas again waited until May 20, 1998, to debit MANA’s Bank of Arkansas account of the $175,169 which should have been subtracted on April 6, 1998. This resulted in MANA being overdrawn in the amount of $171,669.
Bank of Arkansas demanded payment by MANA of the $171,669. MANA first agreed that it would repay the entire amount, but then later tendered only $21,669, leaving $150,000 unpaid. Although MANA had never previously complained about the wire reversal, MANA contended that the entry reversal six months prior on October 14, 1997, of $150,000 was the cause of the overdraft and that First Union’s failure to comply with NACHA Rule 2.5.1 caused the overdraft.
On July 21, 1998, Bank of Arkansas filed suit against MANA for breach of contract, and over one year later, on August 4, 1999, Bank of Arkansas amended its complaint to include a claim against First Union under NACFIA Rule 2.5.2 which states:
Each ODFI [Originating Depository Financial Institution] shall indemnify every RDFI [Receiving Depository Financial Institution], ACH Operator, and Association from and against any and all claim, demand, loss, liability, or expense, including attorney’s fees and costs, that result directly or indirectly from the crediting or debiting of a reversing entry initiated by an Originator through the ODFI.
In November 1999, MANA filed Chapter 11 bankruptcy, triggering an automatic stay. However, the trial court severed Bank of Arkansas’s action against First Union, and both parties subsequently filed cross-motions for summary judgment on the issue of indemnification. The trial court conducted hearings on these motions on April 19, 2000, and June 9, -2000, and took the motions under advisement. On June 26, 2000, the trial court granted summary judgment for First Union and dismissed Bank of Arkansas’s claims against First Union with prejudice. Bank of Arkansas appealed to the Arkansas Supreme Court, and First Union moved to dismiss arguing that its summary judgment was not a final appealable order because Bank of Arkansas’s claims were still pending against MANA. We agreed and remanded to the trial court for further proceedings.
Upon remand, the trial court once again granted summary judgment to First Union, denied Bank of Arkansas’s summary judgment, entered summary judgment for Bank of Arkansas against MANA, and dismissed with prejudice Bank of Arkansas’s claims against First Union. Bank of Arkansas appealed. As its only point on appeal, Bank of Arkansas asserts that the trial court erred'by granting judgment as a matter of law to First Union.
I. Standard of Review
We have ceased referring to summary judgment as “drastic” remedy. We now regard it simply as one of the tools in a trial court’s efficiency arsenal; however, we only approve the granting of the motion when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the nonmoving party is not entided to a day in court, i.e., when there is not any genuine remaining issue of material fact and the moving party is entitled to judgment as a matter of law. Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998). The burden of proving that there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed favorably to the party resisting the motion. Ford v. St. Paul Fire & Marine Ins. Co., 339 Ark. 434, 5 S.W.3d 460 (1999). On appellate review, we determine if summary judgment was proper based on whether the evidence presented by the movant left a material question of fact unanswered. City of Dover v. A. G. Barton, 342 Ark. 521, 29 S.W.3d 698 (2000).
II. Merits
First Union presented in support of its motion for summary judgment affidavits submitted by Bank of Arkansas employees. That fact in and of itself is compelling proof that there were no material facts left unanswered in this case. The affidavits of Craig Shy and Larry Kupp, employees and officers of Bank of Arkansas, as well as the affidavit of Carol Sanders, an employee of an affiliate of Bank of Arkansas, the deposition of Craig Shy, and Bank of Arkansas’s own internal documents overwhelmingly support First Union’s position that summary judgment was properly granted.
Bank of Arkansas contends that its loss is due to First Union’s reversal of a wire transfer from MCI WorldCom in October 1997 and that under NACHA’s operating rules, First Union is required to indemnify Bank of Arkansas for its loss. First Union’s response is that the wire reversal in October 1997 is too remote in time to be considered the source of Bank of Arkansas’s loss. The trial court agreed with First Union by granting summary judgment in First Union’s favor. We agree and hold that there is no connection, either directly or indirectly, between the wire reversal, which occurred some seven months prior to Bank of Arkansas’s loss and to which no party had previously objected, and appellant’s loss.
Any loss suffered by Bank of Arkansas was obviously directly and solely due to Bank of Arkansas’s own mistakes in mishandling MANA’s. checking account when Bank of Arkansas failed to debit the transfer out of MANA’s Bank of Arkansas account to the Bank of Bentonville. We find the discussion of whether the wire reversal by First Union was right or wrong to be irrelevant to Bank of Arkansas’s loss. Bank of Arkansas and MANA are clearly the real parties in interest in this case. Further, Bank of Arkansas holds a judgment against MANA; therefore, it has a remedy. We hold that First Union is not hable for Bank of Arkansas’s negligence in this case; as such, summary judgment was properly entered in First Union’s favor.
Affirmed.
CORBIN, J., not participating.
The bankruptcy stay had since dissolved. | [
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Annabelle Clinton Imber, Justice.
In 1999, Isaac A. Colbert was found guilty of possession of a controlled substance with intent to deliver and simultaneous possession of drugs and a firearm. He was sentenced to two consecutive terms of life imprisonment in the Arkansas Department of Correction. In a previous appeal, Mr. Colbert challenged the intent-to-deliver conviction alleging that the search of his car had been unconstitutional, and the evidence from that search should have been suppressed. We agreed and reversed and remanded. Colbert v. State, 340 Ark. 657, 13 S.W.3d 162 (2000) (Colbert I). On remand, the trial court ruled that a new trial was not required on the simultaneous-possession conviction because it had not been challenged on appeal; and, therefore, the conviction on that count had not been reversed. Mr. Colbert now appeals that ruling by the trial court and argues that when this court reversed and remanded in Colbert I, we reversed the simultaneous-possession conviction as well as the intent-to-deliver conviction. We disagree and affirm.
The facts in Mr. Colbert’s original trial were set out in detail in the first appeal and need not be repeated in their entirety here. Colbert I, 340 Ark. 657, 12 S.W.3d 162. On March 18, 1999, a search warrant was issued to search Mr. Colbert’s house based on information from a confidential informant who had purchased crack cocaine at Mr. Colbert’s house in Prescott, Arkansas. Law enforcement officers went to his house to execute the warrant. However, when they drove up to his house, they saw that his car was not there, so they decided to drive around Prescott and look for Mr. Colbert’s car. Eventually, the officers spotted his car, pulled him over, and placed him under arrest after finding cocaine and a crack pipe in his car. The officers then executed the search warrant at his house and recovered $110.00, a .22 pistol, a .22 rifle with scope, a 12-gauge shotgun, approximately 45 rounds of .22 ammunition, and a paper towel containing two rocks of cocaine totaling .576 grams in the butter tray of the refrigerator. Mr. Colbert was charged with possession of a controlled substance with intent to deliver and with simultaneous possession of drugs and a firearm. After the trial court denied Mr. Colbert’s motion to suppress the evidence seized from his car, the case proceeded to trial. Mr. Colbert was convicted and sentenced to fife in prison on each of the two counts.
In Colbert I, Mr. Colbert appealed his conviction arguing that the trial court erred in denying his motion to suppress the evidence seized from his vehicle. 340 Ark. 657, 13 S.W.3d 162. We reversed and remanded because the initial stop of his car was constitutionally invalid and because the trial court’s admission of the cocaine seized from his car was not harmless error. Id. We also noted in Colbert I that Mr. Colbert did not “challenge the execution of the search warrant at his home or his conviction on the simultaneous possession charge.” 340 Ark. at 660, 13 S.W.3d at 164. In fact, he would have been barred from raising a challenge to the search warrant on appeal because he failed to raise that issue before the trial court. If an issue is not raised at trial, it will be waived on appeal even if it involves a constitutional argument. Friar v. State, 313 Ark. 253, 854 S.W.2d 64 (1993).
On remand, the trial court scheduled the case for a new trial. During pretrial hearings, however, the State moved to nolle prosequi the charge of possession of a controlled substance with intent to deliver. The trial court granted the State’s motion and then ruled that a new trial was not necessary on the simultaneous-possession charge because Mr. Colbert had not challenged his conviction on that charge in the first appeal. Furthermore, the trial court ruled that the life sentence imposed for simultaneous possession of drugs and a firearm was a valid sentence.
In the instant appeal, Mr. Colbert contends that the trial court’s ruling that a new trial was not necessary violated his constitutional right to an impartial trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article 2, section 10, of the Arkansas Constitution. Furthermore, he suggests that when this court “reverses and remands” without further instructions, the reversal applies to the entire case. In support of this argüment, he cites a long line of civil cases for the proposition that “[w]hen a judgment is reversed and remanded for a new trial, the case stands as if no action at all had been taken by the trial court.” Palmer v. Carden, 239 Ark. 336, 338-39, 389 S.W.2d 428, 430 (1965). See also, Lowe v. Morrison, 270 Ark. 668, 606 S.W.2d 659 (1980); Clark v. Arkansas Democrat Co., 242 Ark. 479, 413 S.W.2d 629 (1967); Holt v. Gregory, 222 Ark. 610, 260 S.W.2d 459 (1953). Mr. Colbert, however, fails to recognize that such a proposition is clearly inapposite in a criminal case where the defendant does not object to the admission of evidence before the trial court, and, as a result, the defendant is procedurally barred from arguing on appeal for the reversal of the conviction supported by that evidence.
In his trial, Mr. Colbert did not object to the validity of the search of his home or to the admission of evidence seized from that search. The evidence seized from the search of his home supported his conviction for simultaneous possession of drugs and a firearm. Without an objection to that evidence below, he did not preserve for appeal a challenge to the admissibility of the drugs and guns seized at his home and his resulting conviction for simultaneous possession. Because Mr. Colbert could not raise a challenge to his simultaneous-possession conviction on appeal, the reversal in Colbert I applied only to the conviction for possession of a controlled substance with intent to deliver.
Rule 4-3 (h) Compliance
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) (1987). None has been found.
Affirmed.
The State asserts in its brief that the law-of-the-case doctrine should govern this appeal. We disagree. The doctrine precludes the trial court on remand from considering and deciding questions that were explicitly or implicitly determined on appeal. King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999); Camargo v. State, 337 Ark. 105, 987 S.W.2d 680 (1999); Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997). As previously mentioned, Mr. Colbert was procedurally barred in his first appeal from challenging the admission of evidence that supported his simultaneous-possession conviction. Thus, because that issue was not before this court in the first appeal, it was not expressly or implicitly determined in Colbert I. | [
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Jim Hannah, Justice.
Appellant Carl Dale Branstetter appeals his conviction of capital murder and sentence of life without parole imposed for causing the death of J.N., the eight-year-old son of LaDonna Murray. Branstetter asserts a number of errors in the trial court require reversal. First, Branstetter argues that there was insufficient evidence to support the jury verdict. Branstetter also argues error in admission of evidence of prior injuries suffered by J.N. and his sister K.N. Branstetter additionally argues error in the trial court’s refusal to admit a statement of J.N.’s mother that partially exonerates him. Branstetter next argues error for failure to find the capital-murder statute void for vagueness in that the term “circumstances manifesting extreme indifference to the value of human life” has been defined by this court in a contradictory fashion in past cases. Branstetter also argues error in rejecting proffered jury instructions. Finally, Branstetter argues error in refusing to reinstate peremptory challenges he alleges he was compelled to use on jurors who should have been excused for cause. He asserts this required him to accept a juror he would have excused had he still had a peremptory challenge. We hold there is no error and affirm.
Facts
In 1998, LaDonna and Eric Murray were married and living in Hot Springs. K.N. and J.N. were living with them. LaDonna and Eric were having marital difficulties, and in August 1998, LaDonna, K.N., and J.N. moved a couple of houses down to live with Branstetter. At this time K.N. was ten years old and J.N. was eight.
K.N. testified that while they were living with Eric Murray, punishment involved grounding and being spanked, but only spanking with the hand. She then testified that when they moved in with Branstetter, he took an active part in the childrens’ punishment and that punishment increased initially to being spanked with a belt, and that later it became more severe. K.N. testified that her mother began to strike her with an open hand and, on at least one occasion, “busted” her lip. She went on to testify that Branstetter also struck her with an open hand but then began using his fist. She stated further that Branstetter would strike both she and J.N. in the face and head. K.N. also testified she saw Branstetter strike J.N. in the stomach.
K.N. was asked about an incident in April of 1999 when J.N. became ill. She had no recollection of J.N. falling from a tree, which was the reason Branstetter gave doctors for the injuries J.N. suffered. She did recall that at that time J.N. had stomach pains so severe he walked bent over. She described him as looking like “the hunchback of Notre Dame.” K.N. stated she was not told how he had been injured.
Dr. Heinemann, a pediatrician, saw J.N. in April 1999 on a scheduled visit to do a check-up for his Attention Deficit Disorder and school behavior. LaDonna gave a history to the nurse that J.N. was there for the check-up and that he had had fever and stomach pain for four days. Dr. Heinemann noticed J.N. appeared to be ill and found he was running a fever. Dr. Heinemann examined J.N. and found he was in great pain. She feared he had a ruptured appendix and described him as “really hurting.” Dr. Heinemann directly admitted J.N. to St. Joseph’s Hospital in Hot Springs. At the hospital, J.N. came under the care of surgeon Dr. Brunner. He reviewed a CT scan and determined J.N. was suffering from an abscess. Preoperatively, Dr. Brunner found a four-to-five-inch bruise above J.N.’s waist on the right. Dr. Brunner testified his history revealed J.N. had been sent to school and sent home due to the injury, that this had gone on for several days despite the severe pain.
Dr. Brunner described J.N. as “frail.” At this time, he only weighed about fifty pounds although he was eight years old. Dr. Brunner performed surgery and determined J.N.’s appendix was not involved, but rather found a hole in the small intestine just below the stomach that was the cause of the infection. He expressed the opinion it takes a very specific force to cause such an injury. He testified that the history he received from Dr. Heinemann was J.N. had fallen from a tree. Dr. Brunner testified the injury required a blow to the stomach such as a punch, and that Branstetter reported J.N. had suffered the injury falling from a tree. Branstter stated he had not seen it happen. Later he told others he had. Dr. Brunner stated falling from a tree would not cause such an injury unless J.N. had fallen on an object such that he suffered a blow similar to a punch. No such history was given.
J.N. improved in the hospital after the surgery, but a fever persisted due to a residual infection from the extensive abscess, which required a second operation. More time was needed to allow the infection to clear. However, before that was achieved, Branstetter and J.N.’s mother insisted he be transferred to Arkansas Children’s Hospital in Little Rock. This was done. After a couple of days at Children’s, J.N. was sent home. K.N. testified J.N. was doing well after he came home.
However, according to K.N., the environment in the home did not improve. In June, she was caught lying and was subjected to blows with a one-by-two-inch board on her rear end. K.N. testified she was struck only by Branstetter and was struck more than ten times. She said her mother was present at the beating but did not intervene. K.N. testified further that the injury from the beating was so severe she could wear no clothing and would lay on her stomach to avoid anything touching the injury. She reported her mother and Branstetter promised to take her to a doctor but did not do so. They did provide salves. When she later received treatment during foster care, the injury was so severe the physician initially thought it was a third-degree burn. Branstetter claimed K.N. received this injury by falling off a go-cart and being dragged. Branstetter attempted to get his neighbor, John Garner, to tell the authorities that K.N. received the injuries to her rear end in this manner.
On June 23, 1999, while K.N. was suffering from this injury, she noticed J.N. standing in front of a wall, something she knew meant he was in trouble. She saw him as she went to the bathroom. K.N. was still in bed with her injury but later went upstairs to watch TV and testified she required assistance from her mother to get up the stairs. Once there, she laid on the floor to be able to watch TV. Branstetter had come home by this time and was seated on the couch with their mother. J.N. was standing in front of Branstetter. K.N. stated she could tell J.N. was in trouble, but she did not know what for. Branstetter was asking him questions. She then saw Branstetter strike J.N. on the head and in the stomach. This was only a few weeks after J.N.’s abdominal surgery when Branstetter was told by doctors the injury was so severe that his recovery was not assured. K.N. then testified that Branstetter then began to strike J. N. again and at this point her mother asked K.N. if she wanted ice cream. She did. Her mother left the room to get the ice cream. K. N. testified that by then J.N. was being struck so hard he was falling to the floor. Each time he was commanded to stand back up. K.N. stated J.N. asked Branstetter to stop, but he did not. Branstetter was continuing to ask questions of J.N. J.N. then began to. scream, and Branstetter began screaming J.N.’s name. K.N. stated that it was about this point J.N. could stand no more. He was unconscious. She believes her mother then tried to take his blood pressure and told her to go downstairs and get dressed. K.N. further stated that at this time, Branstetter continued to yell out J.N.’s name and that he went downstairs and began to scatter tools in the stairwell. Branstetter then called his mother and told her they were taking J.N. to the hospital because he was hurt. Branstetter told K.N. she was to tell the story that J.N. had fallen down the stairs.
Upon arrival at the hospital, J.N. was unconscious. The emergency room doctor intubated him and had a CT scan done. Dr. James Arthur was called in as a neurosurgeon. He found J.N. to be small and stated he appeared to be about six years old instead of eight. Pressure was building within J.N.’s skull, and Dr. Arthur performed surgery to relieve that pressure. He found the brain was swollen in the right temporal region so severely that to try to reduce pressure to acceptable levels he had to remove the right temporal lobe of J.N.’s brain.
J.N.’s pupils were fixed, and there was very little reaction to any stimuli. Dr. Arthur noticed bruising about J.N.’s head and additional bruising on his chest. There was also bruising on his neck. He then found bruises and abrasions on his legs and arms in various stages of healing.
J.N. was put in ICU, where despite the physican’s and nurse’s efforts, the pressure within his skull continued to climb. After twenty-four hours, J.N. was no longer spontaneously breathing. On June 26 they did an EEG and found no brain activity. A second EEG was done on June 27. Again there was no brain activity. Life-support equipment was turned off, and J.N. was declared dead.
Dr. Arthur visited Branstetter’s home after J.N.’s death and viewed the stairs where the fall was reported to have occurred. There were five steps. Dr. Arthur opined the injuries to J.N. were not consistent with such a fall, but rather were consistent with repeated blows to the head.
Dr. Steven Erickson performed an autopsy. He testified there was “a whole lot of injury from the level of the knees upward.” As to J.N.’s head, he found a large deep bruise on J.N.’s left jaw, as well as other bruising to the head. Dr. Erickson noted that due to the surgical intervention, he was not able to opine if additional similar injuries might have been masked by the damage of surgery. He examined the remainder of J.N.’s body as well. He found three different areas of significant bruising and injury on J.N.’s neck and collarbone. He found a series of bruising from J.N.’s armpit across his chest, bruising so severe that it reached down through all his tissue to his rib cage. Dr. Erickson also found injuries and abrasions on his right arm, on his left forearm, a three-quarter by nine-sixteenths inch ulceration, and bruising and injuries to his legs that were inconsistent with injuries that might have been received in play. Dr. Erickson finally opined that the injury to the abdomen suffered in April 1999 was not consistent with an accident but rather was consistent with a punch or a kick. He found the injuries to J.N.’s head were consistent with repeated blows and that the death was a homicide resulting from chronic child abuse.
Sufficiency of the Evidence
Branstetter argues there was insufficient evidence to support his conviction and asserts that the trial court erred in denying his motion for a directed verdict. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000). This court has repeatedly held that 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. Id.; Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998). We affirm a conviction if substantial evidence exists to support it. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). 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 having to resort to speculation or conjecture. Id. Circumstantial evidence may provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999).
Branstetter alleges the State faded to show that under circumstances manifesting extreme indifference to the value of human life he knowingly caused J.N.’s death. He alleges that the facts at most show recklessness. The facts show Branstetter brutally beat a frail eight-year-old boy to death. The jury could have reasonably inferred from the evidence that this was not a spanking or discipline action that got out of hand. The boy died because he was repeatedly beaten in the head, beaten so severely that he fell unconscious and then suffered death due to injury to his brain.
The relevant facts in this case begin in August 1998 and show J.N. and K.N. were progressively subjected to ever greater abuse as the months passed. The evidence showed Branstetter was involved in the discipline of J.N. and K.N. The evidence reflects the abuse suffered by J.N. and K.N. increased in intensity until J.N. was punched or kicked so hard that his small intestine was punctured against his spine, and that just a few weeks after J.N. was released from this surgery, Branstetter was punching him in the stomach and head. The injuries to his head were so severe that J.N. suffered death.
The medical evidence showed an underweight eight-year-old boy who had highly suspicious injuries from his shins to the top of his head. Most were bruises, some quite severe, and all injuries were found by the medical examiner to be inconsistent with injuries one would expect to see resulting from play. Rather, the injuries were what would be expected from physical abuse. J.N. was living in Branstetter’s home when he received all of these injuries. Branstetter provided most of the history to doctors both in April and in June. Most of the contact with the hospitals was by Branstetter. Branstetter was present and involved in discussions with doctors in April 1999 regarding J.N.’s abdominal abscess caused by a blow to his stomach. Branstetter was aware it was life threatening, that not all children who suffer such an injury survive. Nevertheless, it was but a few weeks later Branstetter was punching J.N. in the stomach. There can be no viable claim of accident or mistake under these facts. Branstetter additionally admitted to, at the least, participation in beating K.N. which occurred shortly before J.N.’s death. K.N. testified Branstetter was the only person involved in that beating.
According to K.N.’s testimony, while J.N. was standing before Branstetter on June 23, Branstetter was screaming J.N.’s name, and this was shortly followed by Branstetter striking J.N. with such blows to his head that he was thrown to the floor. She further testified that there were additional similar blows to J.N.’s head and that when he fell to the floor, Branstetter commanded J.N. to stand back up. She yet further testified that Branstetter struck J.N. in the stomach. Finally, the evidence showed that it was only when J.N. could no longer stand up and was unconscious that the assault ceased, and that then the screaming continued as Branstetter went downstairs to place tools so as to be able to claim J.N. had fallen down the stairs. Only then did Branstetter take J.N. to the hospital.
There was more than sufficient evidence to support the jury’s conclusion that Branstetter was guilty of capital murder.
Injuries Suffered by J.N. and K.N. Prior to June 23rd
Over objection, the State introduced evidence of prior injuries suffered by both K.N. and J.N. More specifically, evidence was offered to show the before-mentioned beating K.N. suffered shortly before the fatal assault on J.N. Evidence was offered to show Branstetter participated in this beating and that K.N. was beaten with a 1 x 2 inch board. These injuries were still healing when J.N. suffered his fatal injuries.
Additionally, Branstetter complains of admission of the evidence ofJ.N.’s abdominal injury in April 1999, which resulted from a blow so severe that his small intestine was punctured as it was thrust against his spine. J.N. endured horrible pain before he was taken for care, resulting in two surgeries and over a week in the hospital. Finally, there was evidence offered of significant other bruising and injury on J.N.’s body from his knees to the top of his head. The medical examiner testified of a series of bruises on J.N.’s chest so severe they reached all the way down through the tissue to his rib cage, and further of abrasions and scrapes on his arms, and yet further of injuries to his legs that were too atypical and severe to attribute them to normal minor injuries resulting from a child’s play. The medical examiner found chronic child abuse.
Branstetter objected to the evidence of other injuries as character evidence excluded by Ark. R. Evid. 404. The State is not permitted to adduce evidence of other offenses for the purpose of persuading the jury that the accused is a criminal and is therefore likely to be guilty of the crime at issue. Ark. R. Evid. 404(a). See also, Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992); Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982).
However, that it is evidence of other crimes does not necessarily make it inadmissible character evidence. The evidence may have a tendency to make the existence of a relevant material fact more or less probable. If such evidence of other conduct or offenses is independently relevant in that they tend to prove some material fact, the evidence is admissible. Morgan v. State, 308 Ark. 627, 826 S.W.2d 271 (1992); Henry, supra. Rule 404 acknowledges this in subsection b. Such evidence is not character evidence, and, thus, is not subject to exclusion under Rule 404. If the evidence of prior bad acts is relevant to show that the offense of which Branstetter is accused occurred, then it will not be excluded by Rule 404. Sullivan v. State, 289 Ark. 323, 711 S.W.2d 469 (1986).
In this case, two young children suffered severe life-threatening physical abuse at the hands of someone to whom they had a right to look for care, protection, and nurture. The abuse commenced in August 1998 and was ongoing until the brutal and deadly beating of June 23 that tookJ.N.’s hfe. When asked about these injuries, the explanations by Branstetter were consistent, that they resulted from accidents. Whether the injuries of June 23 were the result of accident was thus put in issue by Branstetter. Intent was also at issue. In previous cases similar to the present case, this court has found that where children are concerned, evidence of physical injuries to other children in the home and even to a child in another home is probative of intent and the absence of mistake or accident. Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996); Limber v. State, 264 Ark. 479, 572 S.W.2d 402 (1978). In Davis, the appellant was convicted of capital murder in the death of his girlfriend’s twenty-three-month-old son. On appeal he argued error in the admission of evidence he had earlier beaten and been charged with battery of his former wife’s young daughter. Davis argued the State was attempting to show “method of operation,” which was impermissible under this court’s holding in Diffee v. State, 319 Ark. 669, 894 S.W.2d 564 (1995). This court found Davis’s prior crime was admitted to show absence of mistake or accident, not method of operation, and, therefore, Diffee was inapplicable, and the evidence was admissible.
In the earlier case of Limber, supra, evidence of two broken arms suffered by an older brother of the child who was killed by the appellant was at issue. These injuries were suffered prior to the murder and, again, the claim by appellant was accident. This court held admission of the prior injuries to the brother was not in error because it was relevant to intent and the absence of mistake or accident.
The admission of the evidence was not in error under the holdings in Davis and Limber, supra. It had a tendency to make it more probable the injuries were not the result of an accident or mistake and, thus, the evidence was relevant under Ark. R. Evid. 401. It also bears on intent. The evidence was not offered to show the bad character of Branstetter in an attempt to give the jury reason to believe that Branstetter is the type of person who would commit such an act, but rather was offered to show intent and lack of mistake or accident in the presendy charged crime. The evidence is independently relevant proof of Branstetter’s intent and the absence of mistake or accident in committing the offense. The evidence is admissible under the intent and absence-of-mistake-or-accident exception to Ark. R. Evid. 404(b).
Branstetter further argues that even if the evidence was relevant it was so prejudicial that under Ark. R. Evid. 403, the trial court abused its discretion when it refused to exclude it on that basis. The standard of review is abuse of discretion. Mixon v. State, 330 Ark. 171, 954 S.W.2d 214 (1997). The fact that evidence is prejudicial to a party is not, in itself, reason to exclude evidence. The danger of unfair prejudice must substantially outweigh the probative value of the evidence. Marvel v. Parker, 317 Ark. 232, 878 S.W.2d 364 (1994). Here the trial court gave an instruction that the evidence was not to be considered as evidence of character. The probative value of the evidence in showing intent and a lack of accident or mistake was very great and outweighed the prejudicial effect. There was no abuse of discretion by the trial court in allowing the introduction of this evidence.
Statement of LaDonna Murray
At trial, Branstetter sought to introduce a statement of LaDonna in an attempt to discredit K.N.’s testimony by using the statement in cross-examining K.N. K.N. testified that her mother had not participated in her beating, and LaDonna’s statement indicated she had. Another statement existed wherein LaDonna denied any participation. In the statement Branstetter sought to introduce, LaDonna did not exculpate Branstetter, but rather indicated she had initiated the beating and then Branstetter joined in. Branstetter asserts the trial court erred when it refused to admit this statement. Branstetter argues more specifically that Ark. R. Evid. 804(b)(3) allows admission of this statement as one against interest. One of the requirements of the rule is that the declarant be unavailable. She was. LaDonna refused to testify by availing herself of her Fifth Amendment rights.
However, as noted, LaDonna’s statement only admitted her involvement in the beating and did nothing to exonerate Branstetter. This court very recently discussed a statement against interest that incriminated the declarant but did not entirely exculpate him. Cox v. State, 345 Ark. 391, 47 S.W.3d 244 (2001). In Cox, this court questioned the application of the rule where accomplices are. involved. Under those circumstances, an admission by one does not exculpate the other. This court found the rule inapplicable, and, for the same reasons, it is inapplicable here. LaDonna’s statement did not even attempt to exculpate Branstetter, and, thus, the rule is even less applicable under these facts.
Branstetter also argues that even if Rule 804 is not applicable, this exclusion of evidence constituted a mechanical application of the hearsay rule to defeat his due-process rights and right of confrontation depriving him of the ability to put on a defense. There is no issue as to confrontation and opportunity of cross-examination. What Branstetter complains of is if the statement had been admitted, he could have questioned K.N. as to why she said her mother was not involved when her mother admitted she was. Nothing stopped Branstetter from cross-examining K.N. LaDonna did not testify, so the statement could not be used as a prior inconsistent statement to impeach her. We also note that there is at least one other statement wherein LaDonna denied involvement, which means at trial her statements would have, in effect, nullified each other on this issue, and the statements were untrustworthy. There was no abuse of discretion.
Circumstances Manifesting Extreme Indifference to the Value of Human Life
Branstetter alleges that he was not on notice that brutally beating a frail eight-year-old boy in the head so as to cause his death constituted circumstances manifesting extreme indifference to the value of human life and that, therefore, his conviction should be overturned. Branstetter alleges this court has not consistently defined the term “under circumstances manifesting extreme indifference to the value of human life.” He argues cases wherein this court has discussed that term under other statutes such as DWI.
The capital murder statute provides the required intent, which is “knowingly.” That term is specifically defined in Ark. Code Ann. § 5-2-202(2)(Repl. 1997). Ark. Code Ann. § 5-10-101(a)(9) (Repl. 1997) requires “he knowingly cause the death of a person fourteen (14) years of age or younger. . . .” The questioned phrase adds that for the crime to fit the requirements of capital murder, the knowing act must be committed “under circumstances manifesting extreme indifference to the value of human life.” In the context of capital murder cases this court has already stated, “The words ‘manifesting extreme indifference to the value of human life’ indicate that the perpetrator of capital murder must act with deliberate conduct that culminates in the death of some person.” Davis, supra. See also, Flowers v. State, 342 Ark. 45, 25 S.W.2d 422 (2000); Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998); McGehee v. State, 328 Ark. 404, 943 S.W.2d 585 (1997). Here, there was deliberate conduct that culminated in the death of eight-year-old J.N. Thus, there is no merit to Branstetter’s argument.
Refused Jury Instructions
Branstetter alleges the trial court erred in refusing three jury instructions he provided based upon Ark. Code Ann. § 5-2-605 (Repl. 1997), § 5-2-614 (Repl. 1997), and § 5-2-406 (Repl. 1997). In determining if the trial court erred in refusing an instruction in a criminal trial, the test is whether the omission infects the entire trial such that the resulting conviction violates due process. Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980). See also, Cox-Hilstrom v. State, 58 Ark. App. 109, 948 S.W.2d 409 (1997). We also note that a non-model jury instruction should not be given unless the model instruction does not accurately reflect the hew. Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999). No such argument is made. On that basis alone the trial court should be affirmed. Even so, there is no merit to the arguments made.
The first statute discusses justification for the use of “reasonable and appropriate force” in discipline. Discipline was not at issue. There is no issue of “reasonable and appropriate force.” Branstetter was being tried for beating J.N. in the head so severely that he lost consciousness and died. Therefore, there was no rational basis for the instruction as offered under these facts, and its rejection was proper.
The second statute discusses recklessness or negligence in forming a belief on the use of force in discipline. As with the first statute, the issue is capital murder, and there is no basis for the instruction under these facts.
Finally, the third statute discusses accomplice liability. This court in Jones, supra, stated this section addresses the situation where two or more defendants are charged and tried together. Such is not the case here, and the instruction was properly refused.
Peremptory Challenges
Branstetter argues the trial court erred in denying a challenge for cause on six jurors. He then alleges that because of this, he was forced to use his peremptory challenges and no longer had one to exercise on juror Bibb, the last juror seated. As to juror Bibb, counsel for Branstetter stated:
We have no cause challenge, and, obviously we’re out of peremptories, so there’s nothing to prohibit Mr. Bibb from being empaneled as a juror.
Thus, there was no claim of cause. This issue was raised and recently discussed by this court in Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). Therein the appellant argued that because the trial court denied his motion to strike a juror for cause, he was forced to accept a juror he would have otherwise rejected by peremptory challenge. We then stated that the loss of peremptory challenges cannot be reviewed on appeal and that the appeal focuses on the people who were seated on the jury. Ferguson, supra; Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999); Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998). Further, to challenge a juror on appeal, appellant must show he exhausted his peremptory challenges and was forced to accept a juror who should have been excused for cause. As noted above, there was no challenge to Mr. Bibb for cause. Not only that, but Branstetter admits there were no grounds for cause. Therefore, this issue is without merit.
4-3 (h) Review
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.
We affirm. | [
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Annabelle Clinton Imber, Justice.
In February 1999, a jury found Charles Whitfield guilty of four counts of rape, one count of attempted rape, five counts of residential burglary, one count of attempted residential burglary, one count of second-degree battery, and one count of exposure to human immunodeficiency virus. Mr. Whitfield was sentenced to four terms of life imprisonment in the Arkansas Department of Correction for the four counts of rape and to lesser terms for the other crimes, with the sentences to run concurrently. Mr. Whitfield’s only argument on appeal is that the trial court erred in denying his motion for a directed verdict because the DNA evidence, standing alone, did not constitute substantial evidence to identify him as the perpetrator of the crimes. We find no merit in this argument, and we affirm.
I. Standard of Review
A motion for a directed verdict is a challenge to the sufficiency of the evidence to support the verdict. Russey v. State, 336 Ark. 401, 985 S.W.2d 316 (1999). This court will affirm a conviction if there is substantial evidence to support the verdict when viewed in the light most favorable to the State. Engram v. State, 341 Ark. 196, 15 S.W.3d 678 (2000), cert. denied, 531 U.S. 1081 (2001). Substantial evidence is evidence of sufficient force and character as to compel, with reasonable certainty, a conclusion beyond mere speculation or conjecture. Id. Sufficient evidence may be circumstantial or direct. Id. Circumstantial evidence must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Id.
II. Sufficiency of the Evidence
At trial, the State’s expert testified that the probabilities that someone other than Mr. Whitfield committed the rapes were one in 800 billion in the black population. Mr. Whitfield does not challenge the admissibility of the DNA evidence or the validity of the scientific DNA tests performed. His only challenge is that this DNA evidence, with no other corroborating evidence, is not sufficient to identify him as the perpetrator of the crimes.
Before addressing Mr. Whitfield’s sole point on appeal, we first note that DNA profiles have been admissible evidence in Arkansas since 1991. Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). In Prater, we also held that a DNA expert may testify using probability extrapolations based on the DNA profiling. Id. DNA evidence is no longer considered to be novel scientific evidence and has generally been accepted as proof of guilt. Engram v. State, supra. In Burmingham v. State, we affirmed the trial court’s ruling that, in addition to probability statistics, a DNA expert witness could give his opinion as to whether or not the “appellant was the source of the DNA material found on the victim’s vaginal swab.” Burmingham v. State, 342 Ark. 95, 105, 27 S.W.3d 351, 357 (2000).
In Engram, just as in the instant case, the appellant argued that uncorroborated DNA evidence was insufficient as proof of identity to support his conviction. Engram v. State, 341 Ark. 196, 15 S.W.3d 678 (2000). Mr. Engram was found guilty of capital murder and rape. The State’s DNA expert testified that the probability that the semen recovered from the victim belonged to a person other the Mr. Engram was one in 600 trillion. Id. A review of the record did not support Mr. Engram’s assertion that the DNA evidence was the only evidence offered to prove his identity. In addition to the DNA evidence, a state trooper testified that he encountered Mr. Engram at the crime scene on the night of the crime and that Mr. Engram provided an implausible explanation for being there. Id. Circumstantial hair and fiber evidence also linked him to the crime. Id. This court held that the DNA evidence when considered with the additional circumstantial evidence adduced at trial was sufficient to support Mr. Engram’s rape and capital-murder convictions. Id.
Likewise, we have held in other cases that DNA evidence along with other evidence corroborating the identity of the perpetrator was sufficient to support the verdict. See Stewart v. State, 331 Ark. 359, 961 S.W.2d 750 (1999) (DNA profile match along with fingerprint evidence and victim’s identification of defendant as the perpetrator); Russey v. State, 336 Ark. 401, 985 S.W.2d 316 (1999) (DNA evidence and victim’s identification testimony); Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998) (DNA evidence and accomplice’s identification testimony).
In this case, Mr. Whitfield argues, as did the appellant in Engram, that the DNA evidence alone was insufficient to identify him as the perpetrator and was, thus, insufficient to support the verdict. The evidence presented at trial revealed the following facts. From November 1997 through November 1998, Little Rock Police investigated four rapes and an attempted rape that appeared to follow a similar pattern: All five crimes occurred within a few blocks of each other at about the same time in the early morning; the perpetrator wore a mask; the victims, who were all single women, described him as a medium-build, black male; the point of entry was always through a window; a weapon was used; and the perpetrator would tell the victim a wild story.
In the early morning of December 28, 1998, Lasonya Ford Norris was awake, saw a man lurking around her house, and called the police. The police detained Mr. Whitfield near her apartment. At that time, he was wearing what appeared to be a stocking cap. When the police removed the cap to ensure the officers’ safety, they discovered that it was in fact two articles: a cloth similar to a sweatshirt sleeve with eye holes cut into it and a nylon stocking that covered the shirt sleeve. This information was turned over to Detective Julie Eckert who was investigating the series of rapes in the area where Mr. Whitfield was detained. Based on that information, Detective Eckert obtained a search warrant to draw Mr. Whitfield’s blood. He initially objected to the search warrant, but eventually provided a blood sample in early January 1999. Later that month, on January 20, 1999, Mr. Whitfield was apprehended a second time outside Ms. Norris’s apartment, again in response to a prowler call. On April 27, 1999, Mr. Whitfield, who is HIV positive, was charged by information in Pulaski County Circuit Court with the offenses of rape (four counts), attempted rape, residential burglary (six counts), terroristic threatening, second-degree battery, and exposing another person to HIV.
At trial, Melissa Myhand, a forensic biologist with the Arkansas State Crime Laboratory, testified that she performed DNA profiling on Mr. Whitfield’s blood and on semen samples taken from the rape kits of Chandra Brewer, Lenieka Brown, Rita Adams, Shante Nunn, and on a saliva stain from a mask found in the apartment of Lummie Boykins who fought off her attacker. Ms. Myhand testified that in her opinion Mr. Whitfield’s DNA profile matched the DNA profiles of the samples taken from the crime scenes. She also testified that, in each of the five cases, the probability of randomly selecting an individual with the same DNA profile was approximately one in 800 billion in the black population.
The victims who testified gave the following descriptions of their attacker’s mask: a ski mask with a stocking under it that had one eye cut out; a sweater cap with eyes cut out; a mask and a hood; and a mask with a stocking wrapped around it. When apprehended, Mr. Whitfield was wearing what appeared to be a stocking cap. Upon further investigation, it turned out to be a sweatshirt sleeve with eye holes cut into it, covered by a nylon stocking.
As in the case of Engram v. State, Mr. Whitfield wrongfully asserts that the DNA evidence was the sole proof of his identity as the perpetrator. His assertion seems to ignore other evidence introduced at trial that at least contributes to proof of his identity. First, in response to calls to the police regarding a prowler in the area, Mr. Whitfield was detained twice in the same vicinity where all of the crimes occurred and at the same time of morning that the crimes were committed. Second, when first apprehended, he was wearing a mask that fit the description given by the victims. Third, he fit the general physical description of the perpetrator. Based on the foregoing, and, viewing the evidence in the light most favorable to the State, we hold that the DNA evidence when considered with the additional circumstantial evidence adduced at trial was sufficient evidence to support Mr. Whitfield’s convictions. Thus, we need not decide whether the DNA evidence, standing alone, was sufficient proof of identity to support his convictions.
III. Rule 4-3(h) Compliance
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 fife imprisonment or death, that we review all prejudicial errors in accordance with Ark. Code Ann. § 16-91-113(a) (Repl. 1997). None has been found.
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Ray Thornton, Justice.
Appellant, Daniel Dodson, appeals from the trial court’s granting summary judgment in favor of appellees, Joe Taylor, Mabel Taylor, and J.A. Taylor, Inc. (“J.A. Taylor”). The trial court ruled that appellant’s claim was a derivative action based solely upon a workers’ compensation claim against appellees. The trial court further found that any claim against appellees was barred by the two-year statute of limitations for filing a workers’ compensation claim, pursuant to Ark. Code Ann. § 11-9-702(a)(1) (Repl. 1996). Appellant brings this appeal, arguing that his claim sought to enforce a judgment against appellees and that the two-year limitations of a workers’ compensation claim was not applicable to the enforcement of an Illinois judgment in Arkansas. We agree with appellant on this point, and reverse the trial court.
I. Facts
There is no dispute as to the material facts. In February, 1987, appellant was hired by The Taylor Contracting Company, Inc. (“Taylor Contracting”), in Greene County, Arkansas, and he worked for Taylor Contracting in Arkansas and Missouri. On December 1, 1990, he was injured in an accident in Brighten, Illinois, in the course of his employment for Taylor Contracting. At the time of his injury, appellees, Joe and Mabel Taylor (“Taylors”), shareholders in Taylor Contracting, were residents of Greene County. Taylor Contracting was an Arkansas corporation.
Appellant drew workers’ compensation benefits for a period of time in Arkansas after his injury, according to appellant’s deposition. On April 16, 1992, appellant filed an application for adjustment of his claim with the Illinois Industrial Commission (“Commission”) for his injuries. On July 13, 1993, an arbitrator entered a decision in favor of appellant. On August 12, 1994, the Commission affirmed the arbitrator’s decision and found that Taylor Contracting was uninsured for appellant’s injury, that Taylor Contracting had refused to pay the liability created by the arbitrator’s decision, and that Taylor Contracting had “unreasonably and vexatiously delayed payment.” The Commission then awarded substantial penalties against Taylor Contracting.
On April 17, 1995, pursuant to Illinois law, an order granting appellant judgment against Taylor Contracting in the amount of $70,516.24 was entered by the circuit court of Madison County, Illinois. On June 7, 1995, the Illinois judgment was registered as a foreign judgment in Greene County Circuit Court, as provided by Ark. Code Ann. § 16-66-601 et seq. (1987 and Supp. 2001).
It appears that, on December 29, 1995, a certificate of dissolution of Taylor Contracting was filed with the Arkansas Secretary of State. Appellant argues that, as officers of the corporation, the Taylors transferred the corporation’s assets to themselves and to J.A. Taylor, which was incorporated on February 3, 1994, for the purpose of providing similar construction services to those performed by Taylor Contracting.
On July 22, 1997, more than two years after the foreign judgment against Taylor Contracting was filed in Greene County, appellant filed an action to enforce the judgment against Taylor Contracting in Greene County Chancery Court. In this action, appellant sought to “pierce the corporate veil” of Taylor Contracting to impose personal liability upon Joe Taylor, Mabel Taylor, and J.A. Taylor. On August 4, 1997, appellees filed their answer, claiming that appellant’s action was barred by the statute of limitations.
The trial court granted summary judgment in favor of appellees. In its order, the trial court stated that appellant’s action was “based solely upon a workers’ compensation claim” and that the action was “a derivative action, based solely upon [appellant] being granted judgment against [appellee] by the Third Judicial Circuit Court of Madison County, Illinois, on April 17, 1995.” The trial court concluded that the June 7, 1995 registration of the Illinois circuit court judgment commenced the Arkansas Workers’ Compensation two-year period of limitations and that appellant’s suit was time-barred.
In pursuing his appeal from the court’s entry of summary judgment on the basis of Ark. Code Ann. § 11-9-702(a)(1), appellant also argues that the corporate veil should be pierced, and that Joe and Mabel Taylor and J.A. Taylor should be held personally liable for the judgment against Taylor Contracting. However, the trial court did not address these issues, and neither do we. The only issue before us in this appeal is whether the trial court committed error in applying the two-year statute of limitations.
II. Standard of review
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. Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998), supp. opinion on denial of reh’g, 332 Ark. 189, 961 S.W.2d 712 (1998). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. 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. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.
III. Enforcement of judgment
The first issue is whether appellant’s action is based upon the enforcement of a foreign judgment, or the attempted pursuit of a workers’ compensation claim. This issue was discussed in Larzelere v. Reed, 35 Ark. App. 174, 816 S.W.2d 614 (1991). In Larzelere, Reed was injured during the course of his employment. The workers’ compensation commission ordered his employer to pay medical expenses, but the uninsured employer did not pay the judgments. Reed filed suit to collect the judgment from Larzelere, the chief executive officer and chairman of the board of the company. Following a jury trial, the trial court entered judgment in favor of Reed. The court of appeals held that the CEO and chairman could be individually liable for debts of a corporation. The appellate court stated:
The suit against the appellant, a director and officer of the corporation, was brought in order to enforce payment of the judgments rendered by the Arkansas Workers’ Compensation Commission.
Id. at 176-77.
Appellant cites Larzelere, supra, for the proposition that appellant’s chancery court action to pierce the corporate veil is a valid judgment enforcement action. Appellee responds by arguing that Larzelere, supra, is distinguishable from the present case because Reed’s workers’ compensation claim was timely filed within two years of his injury, and therefore, the applicability of the two-year limitation for workers’ compensation was not an issue and was not resolved. We agree with appellee that the issue of limitations was not reached in Larzelere, supra, and observe that the judgment on the merits of piercing the corporate veil is not before us at this time.
In oral argument, appellees cite Mannon et al. v. R.A. Young & Sons Coal Co., 207 Ark. 98, 179 S.W.2d 457 (1944) for the proposition that there was no wrongful distribution of assets in this case, and that appellant’s allegation of piercing the corporate veil cannot be proven. Like Larzelere, supra, Mannon, supra goes to the merits of the case, which are not ripe for decision in this appeal. The question whether appellees can pierce the corporate veil as a result of the transfer of assets from Taylor Contracting to J.A. Taylor and its individual shareholders is a question left to be resolved by the trial court in the continuation of this litigation.
Because appellant’s cause of action against Taylor Contracting was an enforcement of a judgment, the ten-year statute of limitations would be applicable, pursuant to Ark. Code Ann. § 16-56-114 (1987), which provides: “Actions on all judgments and decrees shall be commenced within ten (10) years after cause of action shall accrue, and not afterward.” Therefore, we hold that the trial court erred in applying the two-year statute of limitations for a workers’ compensation claim found at Ark. Code Ann. § 11 — 9— 702(a)(1).
Based upon our standard of review, we hold that the trial court erred in granting summary judgment in favor of appellees. Accordingly, we reverse and remand.
We should note that the State of Arkansas must give full faith and credit to foreign judgments under the United States Constitution. U.S. Const, art. 4, § 1. In Arkansas, a foreign judgment may be registered in any court of this state having jurisdiction of such an action. See Ark. Code Ann. § 16-66-602 (Supp. 2001). Once a decree or judgment is accepted as proper for registration, then it becomes enforceable as an Arkansas judgment and will remain on the judgment books to be enforced in Arkansas in the future. Nehring v. Taylor, 266 Ark. 253, 583 S.W.2d 56 (1979). See also Durham v. Arkansas Dep’t of Human Servs., 322 Ark. 789, 912 S.W.2d 412 (1995). | [
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Jim Hannah, Justice.
Appellant Richard Allen Duck appeals his conviction on drug charges from the Prairie County Southern District Circuit Court. Duck entered a conditional guilty plea pursuant to Ark. R. Crim. P. 24.3(b), and was sentenced to ten years of imprisonment, with four years suspended. Duck challenges the denial of his motion to suppress evidence on the grounds that subjecting a package to a “canine sniff” on the bumper of a UPS truck violated the Fourth Amendment of the United States Constitution and the Arkansas Constitution. We do not reach this issue because Duck has failed to show he had a legitimate expectation of privacy in the package at the time of the complained of search and seizure. The decision of the trial court is affirmed.
Facts
In March 1999, Prairie County Sheriff Randy Raper received a tip by a phone call that Duck was engaged in illegal drug activities. Sheriff Raper never identified the caller, but testified he knew who it was. The caller told the sheriff that he knew Duck was receiving drugs through UPS delivery and further stated that the packages containing drugs were being addressed to one of several names. The caller identified the names under which the shipments were received, including that of “Ricky Dutch,” noting all would be addressed to Duck’s home address and have a California return address. The sheriff then called Mark Hagee, the security representative at UPS, who checked with the driver and then confirmed that “several” packages showing a California return address had indeed been delivered to Duck’s home. Through testimony, it was established that “several,” in this case, meant at least two. Hagee further told the sheriff that the packages had been sent as overnight deliveries. The sheriff then confirmed this same information with the UPS truck driver. On July 1, 1999, Hagee called the sheriff and notified him that a package meeting the above-noted description would be delivered to Duck that day. It was addressed to “Ricky Dutch.”
Sheriff Raper asked UPS for permission to examine the package but was refused. He also asked to put a dog on the truck to do a “canine sniff” for drugs. This request was denied. Hagee told Sheriff Raper that he could either let the package be delivered or come and seize it. Nonetheless, at the sheriff’s direction, Deputy Randy Munnerlyn intercepted the UPS truck at the police department in Hazen and spoke to the driver. Raper testified he only wanted to be sure the package was on the truck. He further testified that it was Deputy Munnerlyn’s idea to take the next step of asking the driver to take the package out of the truck. Deputy Munnerlyn asked the driver to examine the package.
The driver of the UPS truck was unsure of what he should do. He had had multiple conversations with Hagee about what he should do, but agreed, at Deputy Munnerlyn’s request, to drive to an isolated location south of Hazen where he would place the package on the truck bumper. This was done. The driver and Deputy Munnerlyn had to wait for another officer to arrive with the dog. Upon arrival, the dog “alerted” on the package. The package was then placed back in the truck by the driver and taken to its delivery at Duck’s address. As a consequence of the stop and “canine sniff” the package was delivered an hour and twenty minutes later than that required under the one-day delivery guarantee. Deputy Munnerlyn followed. Sheriff Raper was not present at this time. He was obtaining a search warrant for Duck’s home. He later arrived, and he and Deputy Munnerlyn waited. Duck pulled in his driveway, got out of his vehicle, and picked up the package. Deputy Munnerlyn and the sheriff moved in and arrested Duck. The house was searched, but no contraband was found.
Duck made a conditional plea of guilty under Ark. R. Crim. P. 24.3(b), and a suppression hearing was held to determine if the package would be suppressed. Sheriff Raper testified at the hearing that he recognized the voice of the caller but declined to identify the person. He admitted he had not used this person as an informant before, and thus, the person had no history of reliability. Deputy Munnerlyn testified, as did the officer handling the dog. Mr. Hagee also testified. The motion to suppress was denied, the court finding there was no basis for the search warrant on the house, but that the detention and canine sniff were not illegal. Duck appealed.
Standing
The issue we must first address in a Fourth Amendment analysis is whether Duck had a legitimate expectation of privacy in the subject package. Rakas v. Illinois, 439 U.S. 128 (1978). Duck was not present when the package was subjected to the canine sniff. To that point, the package had never been in his possession. Further, it was addressed to ‘Ricky Dutch’ rather than Richard Duck. He has failed to show he was the addressee. Duck nonetheless asserts his Fourth Amendment rights were violated when the package was subjected to a canine sniff while still in the possession of UPS.
Before we may consider the legality of the search and seizure at the UPS truck, we must determine if Duck has Fourth Amendment rights that will allow him to challenge the search and seizure. Fourth Amendment rights are personal in nature and may not be asserted vicariously. Rakas, supra. A person who is aggrieved by an illegal search and seizure only through introduction of evidence secured by the search of a third person’s premises or property has not had any of his Fourth Amendment rights violated. Alderman v. United States, 394 U.S. 165 (1969). To assert Fourth .Amendment rights, one must have a legitimate expectation of privacy at stake. Simpson v. State, 339 Ark. 467, 6 S.W.3d 104 (1999).
Appellant was arrested upon picking up the package off the porch. Under current law, mere possession of the package does not confer “automatic standing” upon Appellant to raise a Fourth Amendment challenge. United States v. Lewis, 738 F.2d 916, 919 (8th Cir. 1984) (citing United States v. Salvucci, 448 U.S. 83, 92-93 (1980)). He must, therefore, otherwise have a legitimate expectation of privacy in the package at the time of the search and seizure at the UPS truck.
Duck bore the burden of showing he had a legitimate expectation of privacy in the package because he moved to suppress the evidence from the search and seizure. The proponent of a motion to suppress bears the burden of establishing that his Fourth Amendment rights have been violated. McCoy v. State, 325 Ark. 155, 925 S.W.2d 391 (1996). The right to invoke the Fourth Amendment exclusionary rule depends on the existence of the defendant’s substantive Fourth Amendment rights. Mazepink v State, 336 Ark. 171, 987 S.W.2d 648 (1999); State v. Hamzy, 288 Ark. 561, 709 S.W.2d 397 (1986) (citing Rakas v. Illinois, 439 U.S. 128 (1978)). Thus, we must determine:
Whether the challenged search and seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during it. That inquiry in turn requires a determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect.
Rakas, 439 U.S. at 140. In Mazepink, supra, this court stated that evidence under the Fourth Amendment should not be excluded unless the court finds that an unlawful search or seizure violated the defendant’s own constitutional rights; his rights are violated only if the challenged conduct invaded his legitimate expectation of privacy, rather than that of a third party. Hamzy, supra (citing United States v. Payner, 447 U.S. 727 (1980); Rakas, supra.))
At issue is a UPS package. The law is clear that under the Constitution of the United States, the Fourth Amendment provides protection of letters and other sealed packages because they are in the general class of effects in which the public at large has a legitimate expectation of privacy, and that warrantless searches of such items are presumptively unreasonable. United States v. Jacobsen, 466 U.S. 109 (1984). This is so even when letters and sealed packages are sent by private carrier. Id.
[6~9] However, although letters and sealed packages enjoy such protection in relation to the sender and the addressed receiver while in the possession of a carrier, this does not mean that just any ultimate recipient necessarily enjoys such protection. United States v. Villarreal, 963 F.2d 770, 774 (5th Cir. 1992). The affidavit for warrant of arrest states that the package intercepted and subjected to a “canine sniff’ was addressed to Ricky Dutch. That is not the Appellant’s name. The anonymous caller told Sheriff Raper that packages of drugs had been sent to, among other names, Ricky Dutch. The only evidence in the record is the noted affidavit and testimony of Sheriff Raper, Deputy Munnerlyn, and Mr. Hagee. Neither the package at issue nor a photograph of the package was submitted for consideration and proof. Although Appellant asserts in his brief that the package was addressed to him, he offered no such proof. He has failed to show the required personal expectation of privacy necessary to assert the claim of illegal search and seizure occurring prior to delivery to his home. Where the package is addressed to someone other than the person challenging the search and seizure, there cannot be the required expectation of privacy. United States v. Daniel, 982 F.2d 146, (5th Cir. 1993). We also note that, at best, the name on the package was an alias involved in a criminal scheme. A defendant does not have a legitimate expectation of privacy in a package addressed to an alias name where that alias name is part of a criminal scheme. Daniels, supra; People v. Lombardo, 549 N.W.2d 596 (Mich. App. 1996).
“A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.” Rakas, 439 U.S. at 133. We hold that because Appellant has failed to provide proof that he was the addressee on the subject package, he lacked the expectation of privacy required in the package to assert a Fourth Amendment challenge to the actions of the Prairie County Sheriff s Department. Therefore, the trial court’s decision declining to suppress the package is hereby affirmed. Because Duck had no legitimate expectation of privacy in the package, we need not address the issue of whether examination of the package while in the possession of UPS violated the Fourth Amendment.
Affirmed. | [
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Robert L. Brown, Justice.
This is an appeal brought by appellants Owners Association of Foxcroft Woods, Inc. (Foxcroft Woods), and George R. Riley, Jr. (Riley), from a decree entered in favor of appellees Foxglen Associates and Arthur Hart & Company, P.A. (Hart). In that decree the chancery court granted declaratory and injunctive relief, as requested by Foxglen Associates and Hart. The chancery court found that the public had acquired a prescriptive easement in a drive known as the Southern Drive through usage over fifteen years, and based on this easement, it permanently enjoined the appellants from blocking or otherwise interfering with the public’s right to access the Southern Drive. The appellants appeal on five grounds: (1) the seven-year period for a prescriptive easement did not begin to run until February 1995; (2) no prescriptive easement was acquired due to no claim of right or notice of a claim of right; (3) any prescriptive easement acquired has been abandoned; (4) appellees are estopped from claiming an easement against Riley; and (5) Riley did not acquire his property subject to the prescriptive easement because the existence of such an easement was not apparent from an ordinary inspection of the premises. We affirm the chancery court.
This case was submitted to the chancery court by agreement of the parties based on the pleadings, a stipulation agreed to by the parties, exhibits and depositions, and arguments and briefs of counsel. The facts of this case are taken from the chancellor’s decree and the parties’ stipulation. The dispute that gave rise to this litigation stems from nearly two decades of commercial and dense residential development on the north side of Cantrell Road in west Little Rock. There are four separate properties involved in the dispute: the Foxglen Apartments owned by Foxglen Associates; the Foxcroft Woods condominiums associated with the Owners Association of Foxcroft Woods, Inc.; the Foxcroft Village patio homes, one of which was purchased by Riley; and the Hart property owned by Arthur Hart & Company. The Hart property is situated directly on the north side of Cantrell Road. The other three properties are located approximately one-half block north of the Cantrell Road frontage, behind the Hart property. The Foxglen Apartments are to the west of the Foxcroft Village patio homes. The Foxcroft Village patio homes property is an L-shaped tract situated to the west and north of the Foxcroft Woods condominiums. Attached as an Addendum to this opinion is a map depicting the location of these properties.
At the center of this dispute is a drive known as the Southern Drive that runs east and west from the western edge of the Foxglen Apartments east to Foxcroft Road. The Southern Drive was originally paved with curbing in the early eighties and is forty-five feet in width. The drive borders the Hart property to the north and both the Foxcroft Woods condominiums and the Foxcroft Village patio homes to the south. Approximately five-sixths of the Southern Drive is owned in fee by the Foxcroft Woods condominiums. The remaining one-sixth, at the westernmost end of the drive, is owned in fee by the owner of the southernmost parcel of the Foxcroft Village patio homes, who is Riley. According to the relevant plats and bills of assurance filed by Foxcroft Woods in 1982, the Southern Drive was intended to be a “public service and utility easement[ ].”
From the mid-1980s, the Southern Drive remained open and access to the Southern Drive enabled the residents of Foxglen Apartments and the occupants of the Hart property to turn onto Cantrell Road by way of Foxcroft Road, with a traffic light at that intersection. This meant that these residents and occupants could avoid turning directly onto the often-congested Cantrell Road without a traffic light. The public use of the Southern Drive prompted some response from the Foxcroft Woods condominium residents, the degree and tone of which is a matter of factual dispute in this case. What is clear is that in 1991, residents of four units of Foxcroft Woods condominiums wrote a letter to their Owners Association regarding parking space. They wanted to set up a parking-space-sharing arrangement. In the letter, they noted that parking was very limited, and that this problem was exacerbated by “the fact that the city has a public easement that is heavily traveled as a connector, cut-through, turn around, etc.” The only other documentary evidence of complaints from the Foxcroft Woods condominiums residents is a Foxglen Apartments newsletter issued in July 1998. In that newsletter, Foxglen residents were asked to “refrain from accessing Foxcroft residential area via Foxcroft Condominiums and Patio Homes. . . . [W]e continue to receive reports of our residents violating their privacy. It is our understanding that one of their biggest complaints is Foxglen pet owners walking pets on their property.” The timing of this letter —July 1998 — indicates that it was not the vehicular but the pedestrian traffic that was being reported to the managers of the Foxglen Apartments, because at the time of the newsletter, the Southern Drive was blocked to vehicular traffic.
On February 22, 1995, the City of Little Rock’s Fire Marshal noted on a Preliminary Site Plan for lots in Foxcroft Woods Addition that the private drive was to be closed with access only by the fire department. In the winter of 1995, William R. Lile and the Fire Marshal specifically agreed that the Southern Drive could be blocked to public usage with only the fire department to have access. On July 17, 1996, Vantage Development Corporation, which was owned by Lile and Dr. Jerry Bradley, bought the southernmost lot of the Foxcroft Village patio homes. In July or August of 1997, Lile placed unattached barricades along the western edge of the Southern Drive, thereby blocking the Southern Drive to traffic from the Foxglen Apartments and the Hart property. These barricades were small orange-and-white striped sawhorses that were not affixed to the property. The sawhorses were up except for a few days in 1997. Sometime before June of 1998, the sawhorse barricades were replaced by a cable spanning the drive. The cable was strung from two small steel poles placed on either side of the drive. From the cable hung a six inch by fifteen inch red-and-white sign reading “PRIVATE DRIVE DO NOT ENTER.” From July or August of 1997 forward, the public did not use the Southern Drive to access Foxcroft Road.
In June of 1998, almost one year after the Southern Drive was first barricaded by Lile, Riley bought the southernmost lot of the Foxcroft Village patio homes from Bradley’s and Lile’s Vantage Development Corporation. Riley bought the property for his mother, who was eighty years old at the time. At the time of Riley’s purchase, the Southern Drive was barricaded with the cable and “PRIVATE DRIVE” signs. It was also barricaded in that fashion when he visually inspected the lot before purchasing it. Riley never saw the drive in its former functional state. He asked a resident of Foxcroft Woods condominiums, Reggie Clow, how long the cable had been up, and he learned that the cable had been in place “for over a year.”
At the time of Riley’s purchase in June 1998, a patio home was partially constructed on the lot. Upon completion of the patio home, Mrs. Riley moved into it. The Southern Drive was ten to twelve feet from her patio home. Mrs. Riley, according to her deposition testimony, would never have wanted that property to be her permanent residence if she had known that there was a possibility that traffic would be using the Southern Drive.
In April 1999, Riley and Foxcroft Woods built a wooden privacy fence across the Southern Drive, which replaced the cable and signs. It is this fence that sparked the present litigation. On June 24, 1999, Foxglen Associates and Hart filed the suit for declaratory judgment and injunctive relief against Foxcroft Woods and Riley, which is the subject of this appeal. The specific relief requested was for Riley to take down the privacy fence. Foxglen Associates and Hart contended, first, that the relevant plats and bills of assurance created a recorded easement over the Southern Drive in their favor. Next, they asserted that the public’s continuous use of the Southern Drive from 1982 to 1997 created a prescriptive easement.
In its decree, the chancery court concluded that the plats and bills of assurance did not create a recorded easement justifying the public’s use of the Southern Drive. Rather, the court found that the recorded easement was limited to public service usage, including emergency and utility vehicles. However, the court did find a prescriptive easement in the public’s favor. The court issued the injunction, as Foxglen Associates and Hart requested, to remove any barricade from the Southern Drive but stayed the injunction’s enforcement pending this appeal. Foxglen Associates and Hart did not cross-appeal from the chancery court’s adverse ruling on the recorded easement.
I. Seven-Year Period
For their first point, Foxcroft Woods and Riley contend that the seven-year period for a prescriptive easement did not begin to run until February 1995 because that is when they were first entitled to block the drive. We disagree.
We first discuss our standard of review in chancery cases. This court reviews chancery cases de novo on the record but will not reverse a finding by the chancery court unless it is clearly erroneous. O’Fallon v. O’Fallon, 341 Ark. 138, 14 S.W.3d 506 (2000); Slaton v. Slaton, 336 Ark. 211, 983 S.W.2d 951 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Slaton v. Slaton, supra; RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). It is this court’s duty to reverse if its own review of the record is in marked disagreement with the chancery court’s findings. Dopp v. Sugarloaf Mining Co., 288 Ark. 18, 702 S.W.2d 393 (1986) (citing Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984); Walt Bennett Ford v. Pulaski County Special School District, 274 Ark. 208, 624 S.W.2d 426 (1981)).
Foxcroft Woods and Riley argue that the chancery court erred in concluding that the time period for the public’s prescriptive easement began to run before the Little Rock Fire Marshal gave his permission in 1995 to block the Southern Drive. The chancery court found that the running of the prescriptive easement time period began in the mid-80s, when vehicular traffic began using the Southern Drive to avoid Cantrell Road. We note on this point that all parties stipulated to the following: “From the mid-1980s, the southern drive remained open, and was used by the public for ingress and egress, between Foxcroft Road on the east, and the commercial and multi-family properties to the west, on a regular basis until unattached barricades were put up in August of 1997.”
The argument of Foxcroft Woods and Riley apparently is that they knew that a recorded easement existed for public service, emergency, and utility vehicles. Thus, they believed they could not block the Southern Drive in any respect until they learned that the City Fire Marshal had agreed that a blockade was permissible in February 1995. This being the case, they reason that they operated under a disability to in any way interfere with the drive until February 1995. Since they operated under this disability until that time, they contend that the seven-year period for a prescriptive easement could not begin to run before that date.
This argument fails under scrutiny. Even accepting the fact that a recorded easement for public service and utility vehicles was not waived until February 1995, the recorded easement did not prevent Foxcroft Woods and Riley from taking steps to Emit vehicular traffic to public service and utility vehicles before that time. They could have posted signs to that effect, written letters, or taken other comparable measures, as Foxglen Associates and Hart correctly argue in their brief. They could also have gone into court to protest the public’s use of the drive. Instead, they did nothing for the approximately fifteen-year period during which time the public’s right to use the Southern Drive ripened into a prescriptive easement.
Foxcroft Woods and Riley cite this court to Barbee v. Carpenter, 223 Ark. 660, 267 S.W.2d 768 (1954), in support of their argument, but that case is readily distinguishable. In Barbee, the Carpenter family built a fence across a city street which had never been a through street but rather had served as a cul-de-sac driveway for the Carpenter family as well as for the Barbee family who lived across the street. The Carpenter family held fee tide to the cul-desac. The Barbee family sued under a prescriptive easement theory to force the Carpenters to remove the barricade across what had been their mutual driveway. We pointed out in our opinion that until 1940, the Carpenters’ predecessor in interest to the cul-de-sac land had held defective tide to that portion of his land in that the metes and bounds description was inaccurate. Thus, he was “not legally in a position to protest” his neighbors’ use of his driveway until 1940. In the instant case, however, Foxcroft Woods and Riley were under no disability to contest the public’s use of the Southern Drive. Any disability they were operating under only pertained to public service and utility vehicles.
We affirm the chancery court’s ruling on this point.
II. Claim of Right and Notice
For their second point, Foxcroft Woods and Riley contend that the chancery court’s decision on the prescriptive easement was error because Foxglen Associates and Hart had no claim of right. They further argue that the appellees gave no notice of their claim and that the fact they ceased using the drive when it was barricaded indicates that the usage had been permissive all along.
A prescriptive easement may be gained by one not in fee possession of the land by operation of law in a manner similar to adverse possession. See Paul Jones Jr., Arkansas Titles to Real Property §§ 714, 1499, at 443, 906-09 (1935 & Supp. 1959); Neyland v. Hunter, 282 Ark. 323, 668 S.W.2d 530 (1984) (“Prescription is the acquisition of title to a property right which is neither tangible nor visible (incorporeal hereditament) by an adverse user as distinguished from the acquisition of title to the land itself (corporeal hereditament) by adverse possession.”). Like adverse possession, “prescriptive easements ... are not favored in the law, since they necessarily work corresponding losses or forfeitures in the rights of other persons.” 25 Am. JUR. 2d Easements and Licenses § 45 (1996); Potts v. Burnette, 301 N.C. 663, 273 S.E.2d 285 (1981). In Arkansas, it is generally required that one asserting an easement by prescription show by a preponderance of the evidence that one’s use has been adverse to the true owner and under a claim of right for the statutory period. Manitowoc Remanufacturing, Inc. v. Vocque, 307 Ark. 271, 819 S.W.2d 275 (1991); Neyland v. Hunter, supra; Teague v. Raines, 270 Ark. 412, 605 S.W.2d 485 (1980). This court has said that the statutory period of seven years for adverse possession applies to prescriptive easements. Neyland v. Hunter, supra; Duty v. Vinson, 228 Ark. 617, 309 S.W.2d 318 (1958); Brundidge v. O’Neal, 213 Ark. 213, 210 S.W.2d 305 (1948). That statutory period for adverse possession is set out in Ark. Code Ann. § 18-61-101 (1987). See also Ark. Code Ann. § 18-11-106 (Supp. 1999) (enacted as Act 776 of 1995).
Overt activity on the part of the user is necessary to make it clear to the owner of the property that an adverse use and claim are being exerted. Stone v. Halliburton, 244 Ark. 392, 425 S.W.2d 325 (1968). Mere permissive use of an easement cannot ripen into an adverse claim without clear action, which places the owner on notice. Manitowoc Remanufacturing, Inc. v. Vocque, supra; Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W.2d 281 (1954). Some circumstance or act in addition to, or in connection with, the use which indicates that the use was not merely permissive is required to establish a right by prescription. Craig v. O’Bryan, 227 Ark. 681, 301 S.W.2d 18 (1957). The determination of whether a use is adverse or permissive is a fact question, and former decisions are rarely controlling on this factual issue. Duty v. Vinson, supra; St. Louis Southwestern Ry. Co. v. Wallace, 217 Ark. 278, 229 S.W.2d 659 (1950); Brundidge v. O’Neal, supra. The plaintiff bears the burden of showing by a preponderance of the evidence that there has been adverse, not permissive, use of the land in question. Duty v. Vinson, supra; Brundidge v. O’Neal, supra; Stone v. Halliburton, supra.
Foxcroft Woods and Riley urge that no prescriptive easement was acquired because there was no claim of right by the users of the Southern Drive and no notice to the owners that the usage was adverse. In making this argument, the appellants claim that the usage was permissive, not adverse, and that the usage, as a result, could not metamorphosize into a prescriptive right. They point specifically to the fact that the appellees and the public at large ceased using the Southern Drive for twenty-one months once it was barricaded. They also point to the 1998 Foxglen Apartments newsletter where apartment residents were advised not to violate the privacy of the residents of Foxcroft Woods condominiums and patio homes by walking pet animals or otherwise. This, they contend, was an admission by Foxglen Associates that its apartment residents were not entided to access Foxcroft Road by means of the Southern Drive.
We view this argument by the appellants to be akin to their argument that any prescriptive easement was abandoned, which is discussed under Issue III. But, in addition, we do not agree that the chancery court’s finding that a prescriptive easement was established was clearly erroneous. The chancery court discounted the appellants’ arguments and made these findings and conclusions in its decree:
When there is usage of a passageway over land, whether it be by permission or otherwise, if that usage continues openly for seven years after the landowner has actual knowledge that the usage is adverse to his interest or usage continues for seven years after the facts and circumstances of the prior usage are such that the landowner would be presumed to know that the usage was adverse, then such usage ripens into a prescriptive easement. Moreover, there is no requirement that a person claiming a prescriptive easement openly communicate their intentions. Gazaway v. Pugh, 69 Ark. App. 297 (2000). Here, the usage of the Southern Drive continued for approximately fifteen years, under circumstances such that the owners of the Southern Drive would be presumed to know that the usage was adverse to them, therefore, a prescriptive easement was established.
The chancery court relied on a court of appeals case, Gazaway v. Pugh, 69 Ark. App. 297, 12 S.W.3d 662 (2000), in reaching its decision. In that case, the court of appeals held that the sheer number of users of a passageway operated to put an owner on notice that the public’s use was adverse to the owner’s title. Gaza-way v. Pugh, supra. In Gazaway, a public prescriptive easement was found against the owner of the land over which many duck hunters seasonally passed. The landowner maintained that he had given permission for family members and friends to use the passage over his land. However, the court found that the large number of users of the road meant that the landowner could not, as a practical matter, have given each of them permission to use the land. Additionally, the court held that there had been “acquiescence to longtime use,” and thus a prescriptive easement in favor of the public accrued over the land. Gazaway, 69 Ark. App. at 303, 12 S.W.3d at 666.
The same principle holds true in the case at hand. We agree with the chancery court that the owners of the Southern Drive would be presumed to know that the public’s usage was adverse to them from the mid-1980s to August of 1997. We conclude that the public use of the Southern Drive for this period of time was sufficient notice of a claim of right.
III. Abandonment
Foxcroft Woods and Riley next posit that even assuming a prescriptive easement came into effect, it was abandoned by Fox-glen Associates and Hart. Specifically, they contend that when the public stopped using the Southern Drive in the summer of 1997 and continued nonusage for twenty-one months, this was proof of abandonment. In short, the appellants urge that the affirmative act of nonusage by the public, including the appellees, was inconsistent with any claim under a prescriptive easement. Moreover, they contend that an act inconsistent with the public’s use, such as barricading a drive, need not continue for the statutory period of seven years.
The chancery court dispensed with the argument of Foxcroft Woods and Riley by observing that for an abandonment to be effective, it must occur for a period of time equivalent to the statutory period necessary to create a prescriptive easement, which is seven years, and nonuse did not continue for that period of time. We agree.
Our law is clear on this point. Once gained, a prescriptive easement may be abandoned by more than seven years of nonuse. Weir v. Trucks, 255 Ark. 494, 500 S.W.2d 923 (1973). Such abandonment allows the owner to reenter and prevent the holder of the former easement from reestablishing its prescriptive right to the use of the roadway. Johnston v. Verboon, 269 Ark. 126, 598 S.W.2d 752 (1980); McLain v. Keel, 135 Ark. 496, 205 S.W 894 (1918).
Foxcroft Woods and Riley, however, contend that barricading a passageway, as distinguished from mere nonuse, obviates the need to satisfy the seven-year period. We do not agree that that is the law. This court has previously addressed this point with respect to the fencing or gating of a strip subject to a prescriptive easement. In Hoover v. Smith, 248 Ark. 443, 451 S.W.2d 877 (1970), we said:
[A] prescriptive easement may be barred after maintenance of a gate for more than seven years, without any action by one claiming the easement to prevent the obstruction, and that failure to take such action during that period constitutes an abandonment of the easement.
Hoover, 248 Ark. at 446, 451 S.W.2d at 879 (emphasis added) (citing Munn v. Rateliff, 247 Ark. 609, 446 S.W.2d 664 (1969)). See also Kennedy v. Crouse, 214 Ark. 830, 832, 218 S.W.2d 375, 376 (1949) (“We have held that if the general public acquiesces for more than seven years in the existence of a gate across a road established by prescription, its conduct amounts to an abandonment of the prescriptive right, entitling the owner to close the gate permanendy.”); Simpson v. State, 210 Ark. 309, 310, 195 S.W.2d 545, 545 (1946) (“Any prescriptive right that the public might have acquired in this road prior to 1928 or 1929 was lost by it when appellant, without objection on the part of the public, was permitted to erect the gates . . . and thereafter for a period of seven years . . . maintain them across this road.”); Porter v. Huff, 162 Ark. 52, 54, 257 S.W. 393, 393 (1924) (“[The holder of the easement] lost any right it may have acquired by acquiescing in a permissive use thereof for a period of more than seven years after the road was closed by gates.”).
The argument of Foxcroft Woods and Riley implicitly calls for us to reverse this long line of cases and hold that merely gating a prescriptive easement will dictate abandonment because it is an inconsistent act. We decline to do so and will adhere to our clear precedent on this point. In the instant case, it is undisputed that traffic on the Southern Drive did not stop for seven years. There were only twenty-one months, at most, of nonuse before Riley put up the fence. The chancery court correctly decided this point.
IV Estoppel
Appellants argue for their next point that Foxglen Associates and Hart knew that the southernmost patio home lot was being sold, and they said nothing about their intention to resume use of the Southern Drive. The appellants assert that this silence estops Foxglen Associates and Hart from breaking their silence at such a late date, after the patio home had been sold to Riley and residence in the home has been established.
Equitable estoppel requires that an innocent person be misled to his or her detriment, so that it would be inequitable to permit the person estopped to change an original position. Exchange Bank & Trust Co. v. Gibbons, 228 Ark. 454, 307 S.W.2d 877 (1957). In order to prove estoppel, the party asserting the defense must prove the following elements: (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. Bedford v. Fox, 333 Ark. 509, 970 S.W.2d 251 (1998); Foote’s Dixie Dandy Inc. v. McHenry, 270 Ark. 816, 607 S.W.2d 323 (1980). See also Parker v. Parker, 75 Ark. App. 90, _ S.W.3d _ (2001). The conduct of the party to be estopped may consist of declarations or admissions, or failure to act or speak. American Cas. Co. v. Hambleton, 233 Ark. 942, 349 S.W.2d 664 (1961). The second element of estoppel has been alternatively stated as follows: The person to be estopped must intend that his conduct shall be acted on or must so act that the party asserting the estoppel had a right to believe it is so intended. Foote’s Dixie Dandy Inc. v. McHenry, supra.
The chancery court determined that equitable estoppel would not pertain in this case because Foxglen Associates and Hart were strangers to the transaction for the sale of the patio home that occurred between Riley on the one hand and Bradley and Lile on the other. The chancery court is correct. Foxglen Associates and Hart were not parties to the sale of the patio home to Riley. Yet, the appellants argue that the second element was met because Foxglen Associates and Hart intended by their silence to induce Riley to buy the patio home. This argument requires this court to speculate unduly. There is nothing in the record to show that the appellees (1) knew of the specific pending transaction between Riley and Bradley and Lile, (2) deliberately held their tongues as to the past use of the Southern Drive, and (3) did so with the intent of inducing Riley to buy the patio home property from Bradley and Lile. Were we to subscribe to the appellants’ theory that Foxglen Associates and Hart intended reliance on their silence, we would be engaging in rank conjecture.
We decline to extend the doctrine of equitable estoppel to the facts of this case.
V. Apparentness
For their final point, appellants take issue with the chancery court’s finding that the easement along the Southern Drive was apparent upon an ordinary inspection of the lot, and that due to this apparentness, Riley was on notice of the drive’s history and had a duty to inquire. Riley points to the cable and signs across the Southern Drive blocking traffic at the time. Despite the fact that the Southern Drive was paved and curbed, he argues that he was not put on notice of the possibility of the lot being encumbered with an easement. Riley further emphasizes that he asked about the status of the drive and was told that it had been closed for “over a year.”
This court has held that when ordinary inspection of the premises by a purchaser, followed by reasonable inquiry, would reveal the existence of a servitude, then that purchaser is charged with notice. Armstrong v. McCrary, 249 Ark. 816, 462 S.W.2d 445 (1971) (citing Hannah v. Daniel, 221 Ark. 105, 252 S.W.2d 548 (1952)). When a person has knowledge sufficient to lead him or her to a fact, that person will be deemed to know it. Hannah v. Daniel, supra; Waller v. Dansby, 145 Ark. 306, 224 S.W. 615 (1920). Whether or not an easement is apparent is a question of fact. Diener v. Ratterree, 57 Ark. App. 314, 945 S.W.2d 406 (1997).
The chancery court made the following findings on this point:
George Riley, Jr. is not an innocent purchaser for value. By his own testimony, he was aware of the significance of the open access and non-permanent cable (i.e., it was “apparent”), as evidenced by his inquiry of Reggie Clow. Further, the Owners Association of Foxcroft Woods, through Bill Rea, its president, was well aware of the long and continuously uninterrupted public use. Therefore, Riley cannot contend that the easement was not apparent. As a result of the “apparentness” of the nature of the easement, the law mandates that Mr. Riley exercise ordinary care and diligence in inquiring into the nature of the potential encumbrance. After learning only that the cable had been up for “over a year,” Mr. Riley testified that he did not inquire into anything further, such as why a permanent barrier had not been put up across the access area, nor did Mr. Riley seek to determine or verify the time period the Southern Drive had actually been blocked, or ask how the open access came to be “private.” Considering Mr. Riley contends he would not have purchased the property if he had known the nature of the public access, his actions clearly did not meet the standard of ordinary care and diligence required under Diener v. Ratterree, supra; Waller v. Dansby, supra; Hannah v. Daniel, supra; and Childress v. Richardson, supra. These facts, in addition to the apparent age of the numerous commercial projects abutting or surrounding the Southern Drive, along with the paved, curbed, and open nature of the access with no permanent barrier, provided Mr. Riley with more than sufficient information to lead him to the true facts, that the cable had only been up less than a year, and that the Owners Association of Foxcroft Woods, Inc. had been aware of the public nature of the access for several years, all facts of which Reggie Clow and Bill Rea were aware, based on the minutes of the Foxcroft Property Owners Association and their depositions.
We cannot say that the chancery court clearly erred in finding that Riley was on notice of the potential for an easement burdening his land. There was a paved asphalt road with curbs running across a portion of his lot. That fact alone was sufficient to put Riley on notice. Further, the manner in which the road was blocked was not permanent. There were no posts sunk in the middle of the road, permanently blocking traffic. And the fact that Riley was told that the Southern Drive was closed for over a year begs the question of what was its status before then. We decline to reverse the chancery court on this point.
Affirmed.
GLAZE, J., not participating.
The chancery court’s order refers to the Southern Drive being open to the public for approximately fifteen years. The stipulation of the parties indicates its was open to the public from the mid-1980s to August 1997. | [
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Donald L. Corbin, Justice.
This case involves a dispute over the ownership of real property located in Magazine, Arkansas. Harold Rigsby appeals an order of the Logan County Chancery Court finding that the real property is owned jointly by him and his son Brett Rigsby as partners. For reversal, Harold argues that there was no evidence to support the chancellor’s finding of a partnership. This court has jurisdiction pursuant to Ark. Sup. Ct. R. 1-2(a)(7). We reverse that part of the chancellor’s order finding that the real property was jointly owned by Harold and Brett as partners.
The record reflects that Harold purchased a parcel of land from R.V. and Mary Huff in August 1971, for $19,500. Initially, Harold and his family lived in a small trailer located on the property. A short time later, Harold purchased a new trailer home where he lived with Brett until 1984. At that time, Brett suggested to his father that they obtain a bank loan in order to build á new house on the property. The parties then co-signed for a $45,000 loan from Citizens Bank of Booneville. Harold secured the note with a mortgage on the Rigsby Road property. It is undisputed that upon obtaining the loan, Brett agreed to pay the monthly loan payments, while Harold agreed to pay all other bills, including taxes, insurance, maintenance, utilities, and groceries. The parties abided by this agreement until 1997.
On October 27, 1997, Brett filed a complaint in chancery court alleging that he was entided to an equitable one-half interest in the real property owned by his father. The complaint alleged that Brett had jointly entered into a debt on the property, thereafter making all payments due on the debt, and that he had constructed substantial improvements on the property resulting in an increase in its value. Based on these allegations, Brett asserted that he had acquired a one-half interest in the real property. He requested an order directing partition of the property, to the extent that it could not be divided in kind. Brett further requested that a constructive trust be imposed upon his equitable interest in the proceeds resulting from any sale of the real property. Finally, Brett alleged that he and his father were partners in a cattle operation and that he had primarily cared for the catde until his father caused all of the cattle to be sold. He requested an accounting of all the proceeds from the sale of the cattle and that he be awarded a one-half interest in those proceeds. Harold, who denied each of Brett’s allegations, filed a counterclaim for ejectment. He requested that the chancery court award him sole possession of the property and dismiss Brett’s claims against him.
A hearing was held in chancery court on January 13, 1999. While the parties agreed that they originally sought the loan for the purpose of building a new house, there was conflicting testimony regarding the construction of certain improvements on the real property. Brett testified that he made substantial improvements to the land, including clearing parts of the land, fertilizing it, erecting fences, and building a barn. On cross-examination, Brett admitted that he and his father sometimes disagreed about the necessity of those improvements, such as the building of a new barn. He testified that his father tried to dissuade him from tearing down the old barn, and that his father even offered to pay him not to build a new barn. Harold testified that he had no control over his son when it came to his desire to make certain improvements. He also testified that many of the improvements such as the clearing and the pond were completed by Brett for his benefit. Specifically, Harold stated that his son was an avid hunter and that he cleared parts of the land in order to attract dove, deer, turkeys, and other wild game. According to Harold, he did receive some benefit from these improvements; however, he was not allowed to use the cleared land for Iris cattle until after hunting season was over.
The parties also gave conflicting testimony with regard to the cattle operation. Brett stated that he and his father ran cattle on the property. On cross-examination, however, Brett admitted that he worked daily at the Whirlpool Corporation from 7:00 a.m. until 3:42 p.m. Brett also stated that he incurred significant expenses in connection with the cattle operation but was not reimbursed for such expenses. Harold testified that he alone ran the cattle operation but admitted that his son helped occasionally, including taking care of the cattle in 1996 while he was hospitalized.
Finally, there was a conflict in the testimony regarding some of the house payments. Brett stated that he had made every house payment since October of 1984. He admitted, however, that his father made a one-time principal payment of $4,000 in October 1992. Harold stated that he also paid three full monthly house payments, as well as one-half of an additional monthly payment. Harold stated further that he incurred expenses totaling $6,230 for improvements made to the house.
After taking the matter under advisement, the chancellor issued a written order finding that the parties had entered into a partnership in 1984 when they agreed to undertake a mutual debt for the purpose of constructing a new house, and that the real property then became property of that partnership. He found further that Harold was entitled to a $12,606.25 credit, should the property ever be sold, to compensate him for his down payment on the property, and the reduction in principal on the original note prior to its satisfaction. Finally, the chancellor awarded the proceeds from the sale of cattle solely to Harold, but inadvertently stated in the decree’s final paragraph that those proceeds were to be divided equally between Harold and Brett. An amended decree was filed in which the final paragraph was changed to reflect that Harold was entitled to the proceeds from the sale of the catde.
Harold appealed the chancellor’s order, but his appeal was dismissed without prejudice because the chancellor failed to address Brett’s claim for partition. See Rigsby v. Rigsby, 340 Ark. 544, 11 S.W.3d 551 (2000). Upon dismissal, the chancellor conducted a second hearing and made additional findings that were reflected in a revised order. The trial court again found that each party was an equal partner in the ownership of the land, but also found that such ownership extended to all mineral interests. The trial court ordered that the property was to be sold, and that each party was entitled to reserve their respective interest in the mineral rights. The chancellor ordered further that the parties would equally bear all closing costs and expenses related to the public sale of the property, with the remaining proceeds to be divided equally, less the $12,606.25 credit awarded to Harold. Finally, the chancellor found that Harold could remain in possession of the property until it was sold. From that order, comes the instant appeal.
For reversal, Harold argues that the trial court erred in finding that the parties formed a partnership with respect to the real property because there was no evidence to support the existence of a partnership. Specifically, Harold argues that there is no evidence that the parties agreed to carry on a “business for profit” with respect to the real property, or that they ever had the requisite intent to form a partnership. We agree.
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. Stephens v. Arkansas Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000); Simmons First Bank of Ark. v. Bob Callahan Servs., Inc., 340 Ark. 692, 13 S.W.3d 570 (2000). 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.
Under Arkansas’s Uniform Partnership Act, a partnership is defined as “an association of two (2) or more persons to carry on as co-owners a business for profit.” [Ark. Code. Ann.] § 4-42-201(1) (Repl. 1996) (emphasis added). Similarly, this court has defined a partnership as “a voluntary contract between two or more competent persons to place their money, effects, labor, and skill, or some or all of them, in lawful commerce or business, with the understanding that there shall be a proportional sharing of the profits and losses between them.” Wymer v. Dedman, 233 Ark. 854, 859, 350 S.W.2d 169, 172 (1961) (footnote omitted) (quoting Black’s Law Dictionary (4th ed. 1957)).
Although the entity known as a partnership may not always be defined with exact precision, the test for determining the existence of a partnership is well established. See, e.g., Boeckmann v. Mitchell, 322 Ark. 198, 909 S.W.2d 308 (1995). In Gammill v. Gammill, 256 Ark. 671, 510 S.W.2d 66 (1974), this court stated that the primary test of a partnership between the parties is their actual intent to form and operate a partnership. See also Brandenburg v Brandenburg, 234 Ark. 1117, 356 S.W.2d 625 (1962); Culley & Sons v. Edwards, 44 Ark. 423 (1884). The existence of a partnership need be proved only by a preponderance of the evidence. Gammill, 256 Ark. 671, 510 S.W.2d 66. Thus, the threshold question to be decided by this court is whether Harold and Brett intended to form and operate a partnership when they agreed to obtain the bank loan in 1984.
Upon reviewing the record in this case, we are convinced that there was no evidence to support a finding that either party intended to form a partnership. In fact, both parties testified that they undertook the joint debt because they simply wanted to build a new house. The following colloquy between Brett and his counsel during direct examination is illustrative of the evidence submitted regarding the parties’ view of this transaction:
[Counsel]:
Q. You claim an equity in that property out there?
Mr. Brett Rigsby:
A. Yes, sir.
Q. You put money into it with his knowledge?
A. Correct.
Q. And what was your relationship with him? I think you said earlier that you thought you were partners on the catde; how about in regards to the real estate?
A. It was my understanding — he told me to do what I wanted to do with it — some day it was all going to be mine anyway.
At best, this evidence reveals that in choosing to undertake a joint debt and make improvements to the property, Brett relied on his father’s promise to one day convey the real property to him. Moreover, the fact that Harold retained sole legal title to the real property contradicts any suggestion that he intended to form a partnership with his son when he agreed to the joint debt and bill-paying arrangement. Likewise, there was no evidence presented to support a finding that the agreement to build the house had any business related purpose.
In addition to a lack of evidence supporting the existence of a partnership, there were also no facts pled by Brett regarding the existence of a partnership in the building of the house. The only, allegation concerning a partnership was Brett’s claim that he and his father jointly ran the cattle operation, but the trial court specifically found Harold’s testimony on that issue to be more convincing, and found that there was no partnership in the cattle business. As previously pointed out, Brett does not challenge this finding. Based upon a review of the foregoing evidence, we believe that the chancellor erred in finding that the parties formed a partnership in 1984 and that the real property became property of that partnership. Accordingly, we reverse that part of the chancellor’s order regarding the ownership of the real property and the respective mineral interests.
On a final note, we recognize that while normally this court reviews equity cases de novo on appeal, it is sometimes necessary to remand a case to the chancery court for a determination of the parties’ rights. Such was the case in Henslee v. Kennedy, 262 Ark. 198, 555 S.W.2d 937 (1977), where this court stated:
Ordinarily, we decide an equity case on de novo review, but there are exceptional cases in which we exercise our discretion, in the furtherance of justice, to remand to the chancery court for further proceedings when the trial court has tried the case on the wrong legal theory and where we cannot plainly see what the rights and equities of the parties are. This is such a case, because so much turns on weighing the evidence.
Id. at 210, 745 S.W.2d at 943 (citations omitted).
Here, the record is replete with contradictory evidence that is highly relevant to a determination of the parties’ interests in the real property. Because we recognize that the chancellor is in the best position to weigh the credibility of witnesses and to determine the weight to be accorded their testimony, we remand this case for a determination of what relief, if any, Brett is entitled.
Reversed and remanded.
The chancellor’s order regarding the cattle proceeds is not challenged on appeal. | [
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Per Curiam.
Katherine S. Streett, as a state-salaried, full-time public defender, was appointed by the trial court to represent appellant Jason Nugene Turner, an indigent defendant, in this criminal case. Turner was convicted and sentenced to life imprisonment in the Arkansas Department of Correction. Ms. Streett timely filed a notice of appeal from the judgment of conviction and lodged the appellate record with the Supreme Court Clerk.
Ms. Streett now asks this court to relieve her as appellant’s counsel and to appoint new counsel. Ms. Street 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. Streett’s motion to be relieved for good cause shown. Mr. Mark M. Henry 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.
[1] Appellant Roger Ross, by and through his attorney, Herbert T. Wright Jr., has filed a motion for belated appeal. The record reflects that Appellant was convicted of several felony drug offenses following a bench trial on September 5, 2000. Appellant was sentenced on December 18, 2000, and the judgment and commitment order was filed on January 3, 2001. On April 6, 2001, Appellant filed a motion for belated appeal in the trial court. The motion was granted by the trial judge on April 9, and the notice of appeal was filed that same date. Pursuant to Ark. R. App. P. — Crim. 2(e), however, all motions for belated appeal must be filed in the Supreme Court, not the trial court. See also Gray v. State, 211 Ark. 442, 642 S.W.2d 306 (1982); Hamman v. State, 270 Ark. 307, 605 S.W.2d 6 (1980). Accordingly, the trial court’s order granting belated appeal had no effect.
Appellant now seeks permission to file a belated appeal from this court. Counsel has accepted complete responsibility for failing to file the notice of appeal on time. We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Jacks v. State, 344 Ark. 405, 39 S.W.3d 459 (2001) (per curiam); Donald v. State, 341 Ark. 803, 20 S.W.3d 331 (2000) (per curiam); Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978).
The motion for belated appeal 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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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 Francisco Estrada. 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 the forfeiture judgment and remand for an order consistent with this opinion.
On May 11, 2005, First Arkansas posted a $25,000 bail bond for Estrada’s release and to assure his attendance on pending charges. Estrada failed to appear at his plea or trial request hearing before the Sebastian County Circuit Court on November 16, 2005. On November 18, 2005, the circuit court entered an order to show cause and served it on First Arkansas. 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 Estrada’s failure to appear. The circuit court ruled that First Arkansas was properly notified in November 2005 via certified letter 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 Estrada’s failure to appear, and the circuit court’s letter setting and giving notice of the show-cause hearing actually favored First Arkansas.
Statutory service requirements, being in derogation of common law rights, must be strictly construed and compliance with them must be exact. See 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 (1994). 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 the circuit court’s forfeiture of First Arkansas’s bond failed to strictly comply with Ark. Code Ann. § 16-84-207. Accordingly, we reverse the circuit court’s forfeiture judgment against First Arkansas and remand for an order consistent with this opinion.
Reversed and remanded. | [
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Jim Gunter, Justice.
This appeal arises from an order of the Pope County Circuit Court ruling that Appellant, Callie Michelle Cox, is not eligible to adopt her biological minor child, M.K.C. Specifically, the circuit court found that Ark. Code Ann. § 9-9-204(3) (Repl. 2002) does not permit an unmarried mother to adopt her child, and, therefore, the court denied her petition. For the reasons set forth in King v. Ochoa, 373 Ark. 600, 285 S.W.3d 602 (2008), we reverse and remand for consideration of the adoption petition on the merits.
On October 15, 2007, Appellant filed a petition for the adoption of M.K.C. The petition stated that Appellant is the biological mother of the child. It further alleged that no father had been involved in the life of the child, and after an inquiry was sent to the Arkansas Department of Flealth and Human Services, no matching claim was found in the Arkansas Putative Father Registry. At a hearing on October 25, 2007, the court denied Appellant’s petition for adoption. The court noted that, while Ark. Code Ann. § 9-9-204(3) does not prohibit adoption of a child by the biological mother, Appellant’s petition should be denied for public policy reasons. An order of dismissal was entered on November 19, 2007, which stated that Ark. Code Ann. § 9-9-204(3) does not permit an unmarried natural mother to adopt her own child. Appellant timely filed her notice of appeal on December 3, 2007.
In Appellant’s sole point on appeal, she argues that the circuit court erred in its interpretation of Ark. Code Ann. § 9-9-204(3). Appellant contends that § 9-9-204(3) permits an unmarried mother to adopt her child for the purpose of establishing herself as the only person with a parent-child relationship to the individual to be adopted, and that the circuit court incorrectly denied her adoption petition.
This court has consistently held that adoption statutes are to be strictly construed and applied. In re Adoption of Tompkins, 341 Ark. 949, 951, 20 S.W.3d 385, 386 (2000). For the reasons set forth in King v. Ochoa, 373 Ark. 600, 285 S.W.3d 602 (2008), we hold that the circuit erred in its interpretation of § 9-9-204. Under this section, an unmarried mother or father may adopt; however, § 9-9-204 only sets out who may adopt. All other requirements under the Uniform Adoption Act must still be met. Accordingly, we reverse the ruling of the circuit court and remand for consideration of the adoption petition on the merits.
Reversed and remanded.
It should be noted that this inquiry was searched under the name “Infant Bracks” in contrast to the child’s name identified in this appeal, M.K.C.
No appellee’s brief was filed in this case. | [
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Per Curiam.
In 1977, appellant Keith Allen Deaton entered a guilty plea in Independence County Circuit Court to charges of capital murder and burglary and received concurrent sentences of life imprisonment without parole and twenty years’ incarceration. In 2007, appellant filed a petition for writ of error coram nobis in the trial court, which was denied without a hearing. Appellant now brings this appeal of that order.
Appellant’s sole point on appeal is that the trial court erred by denying the writ without a hearing. Appellant asserts that he was entitled to a hearing on the petition because the petition presented allegations of a fundamental error of fact extrinsic to the record, that the fact was not known to the trial court at the time the judgment was entered, and that the failure to disclose the fact did not result from the defendant’s negligence or fault. The trial court denied the petition on the basis that appellant failed to show due diligence in his application for the writ. Because the petition clearly did not show due diligence in bringing a timely petition, we affirm the trial court’s denial of the writ without a hearing.
A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999) (per curiam). The function of the writ is to secure relief from a judgment rendered while there existed some fact which would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment. Thomas v. State, 367 Ark. 478, 241 S.W.3d 247 (2006) (per curiam).
In those instances, as here, where the judgment of conviction was entered on a plea of guilty or nolo contendere, or the judgment of conviction was not appealed, the petition for writ of error coram nobis is filed directly in the trial court. If the judgment of conviction was affirmed on appeal, the petitioner must first proceed in this court and gain leave to file a petition in the trial court by means of a petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001) (per curiam). Denial of a writ of error coram nobis is reviewed by appeal. Magby v. State, 348 Ark. 415, 72 S.W.3d 508 (2002) (per curiam).
The standard of review of the denial of a writ of error coram nobis is whether the trial court abused its discretion in denying the writ. Id. at 420, 72 S.W.3d at 510. An abuse of discretion occurs when the circuit court acts arbitrarily or groundlessly. Cloird v. State, 357 Ark. 446, 182 S.W.3d 477 (2004). Here, the trial court did not abuse its discretion to deny the petition without a hearing.
In his petition, appellant alleged that the cause of death of the murder victim was an infection unrelated to the injuries inflicted by appellant. He contended that, because certain medical records were unavailable to the medical examiner who prepared the autopsy report, this information was unavailable at the time that appellant entered his guilty plea. On appeal, appellant contends that the trial court should have allowed him to present evidence at a hearing in order to establish these facts. He further contends that the trial court was required to provide a hearing if there was a possibility that he might succeed and that the determination as to whether petitioner had exercised due diligence was a factual inquiry that merited a hearing.
Where a petition for writ of error coram nobis is filed directly in the trial court, a hearing is not required if the petition clearly has no merit, either in that it fails to state a cause of action to support issuance of the writ, or where it is clear from the petition that the petitioner did not act with due diligence. Appellant cites to Cloird as supporting the proposition that a hearing is required to provide the petitioner with an opportunity to meet the burden of proof for issuance of the writ. But, Cloird was a case where this court had previously granted a petition to reinvest jurisdiction in the trial court and gave permission for the petitioner to file his petition in the trial court, with directions for findings of fact. Under those circumstances, a hearing on the petition was required.
In denying the petition, the trial court determined that appellant did not act with due diligence in that the victim’s medical records were available to defense counsel at appellant’s trial. While there is no specific time limit for seeking a writ of error coram nobis, due diligence is required in making an application for relief and in the absence of a valid excuse for delay, the petition will be denied. Echols v. State, 360 Ark. 332, 201 S.W.3d 890 (2005). Due diligence requires that: (1) the defendant be unaware of the fact at the time of trial; (2) the defendant could not have, in the exercise of due diligence, presented the fact at trial; (3) upon discovering the fact, the defendant did not delay bringing the petition. Id.
Here, appellant contends that the trial court should have taken evidence on the issue of whether the fact could have been presented at trial through an exercise of due diligence on the part of appellant’s trial counsel. But, appellant’s statements in the petition displayed a lack of diligence on the part of the petitioner under the third requirement, whether trial counsel failed to exercise diligence or not. The petition indicates that the reason for the victim’s death was not discovered until “several years after Petitioner pled guilty.” One of appellant’s exhibits is a letter dated April 19, 1995, that discussed infection as the cause of the victim’s death and indicated that it was submitted with appellant’s pardon application. The petition indicates that appellant had previously sought relief under Ark. R. Crim. P. 37.1, as well as through applications to two governors for pardon based on this same information.
The petition shows a delay of at least ten or, quite possibly, more than twenty, years following appellant’s discovery of the allegedly hidden facts before appellant filed the petition for writ of error coram nobis. The petition acknowledged a delay, but contended that appellant’s pursuit of these other remedies was a valid excuse for the delay. It was not.
Relief under Rule 37.1 and error coram nobis proceedings are not exclusive and may be pursued simultaneously. See, e.g., Echols, 360 Ark. at 335, 201 S.W.3d at 892; Dansby, 343 Ark. at 637, 37 S.W.3d at 600; Larimore, 341 Ark. at 400, 17 S.W.3d at 88. Appellant did not cite, and we are not aware of, any restriction that would prevent pursuit of relief through the writ while a petitioner pursues an application for pardon. Appellant’s petition did not present a valid excuse for the delay.
The trial court did not abuse its discretion in denying the petition without a hearing because the petition was clearly without merit. It is clear from the petition that appellant did not act with due diligence in bringing the petition; appellant acknowledged a delay, but did not present a valid excuse. Accordingly, we affirm the trial court’s decision to deny the petition without a hearing.
Affirmed. | [
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Paul E. Danielson, Justice.
Appellant Chor J. Phavixay appeals from his conviction for delivery of methamphetamine, a violation of Ark. -Code Ann. § 5-64-401 (Repl. 2005), and his sentence to 384 months’ imprisonment. His sole point on appeal is that the circuit court erred in admitting evidence of a prior crime, in violation of Rule 404(b) of the Arkansas Rules of Evidence. Alternatively, Phavixay submits that the evidence of the prior crime was inadmissible under Rule 403 of the Arkansas Rules of Evidence due to undue prejudice, waste of time, and confusion of the issues. Because we agree that the admission of evidence of a prior crime violated Rule 404(b), we reverse and remand.
The record reveals the following facts. On February 16, 2007, the State filed a motion to introduce evidence at trial pursuant to Rule 404(b) of the Arkansas Rules of Evidence. Phavixay objected, and the matter was addressed during the preliminary proceedings of Phavixay’s jury trial on March 6, 2007. The State sought to admit evidence of an alleged prior crime of Phavixay, which occurred on August 14, 2006. Phavixay’s con viction in the instant case stemmed from events that occurred on August 24, 2006. Phavixay objected, arguing that because the State had direct proof as to the crime which allegedly occurred on August 24, there was no independent relevance for the prior crime other than to prejudice him and provide evidence of his bad character.
The evidence on which the State relied for Phavixay’s conviction was the testimony of a police informant, Michael Bingham, and Detective Darrell Craghead. The two witnesses were able to establish that Bingham worked along with the Fort Smith Police Department and Detective Craghead by engaging in a controlled buy of narcotics from Phavixay on August 24, 2006. However, the State sought to also admit evidence of a separate controlled buy from Phavixay performed by Bingham, which allegedly occurred on August 14, 2006, ten days prior to the controlled buy for which Phavixay was being tried. The circuit court allowed the evidence of the prior crime to be admitted during the trial with a limiting instruction.
Phavixay was found guilty of delivery ofmethamphetamine and filed a timely notice of appeal on March 20, 2007. The court of appeals certified this case to our court on January 29, 2008, as one involving an area of law needing clarification, and we accepted certification on January 31, 2008. We turn then to the instant appeal.
Phavixay asserts that the circuit court erroneously allowed the State to introduce evidence of a prior bad act or crime as the evidence failed to meet the requirements of Rule 404(b) because it was not independently relevant. He further argues that even if the evidence were somehow relevant, it nevertheless should have been excluded under Arkansas Rule of Evidence 403 because its probative value was substantially outweighed by the danger of unfair prejudice. The State avers that the circuit court did not abuse its discretion in allowing the evidence to be introduced as it was relevant to explain the relationships of the parties and the ongoing drug operation, and it was probative because of the close proximity in time to the crime for which Phavixay was convicted.
Under Arkansas Rule of Evidence 404(b), any evidence of a person’s 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. See Ark. R. Evid. 404(b) (2007). However, the evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. See id.
The admission or rejection of evidence under Rule 404(b) is committed to the sound discretion of the circuit court, and we will not reverse absent a showing of manifest abuse of that discretion. See Lamb v. State, 372 Ark. 277, 275 S.W.3d 144 (2008). Evidence offered under Rule 404(b) must be independently relevant to make the existence of any fact of consequence more or less probable than it would be without the evidence. See id. In other words, the prior bad act must be independently relevant to the main issue, in that it tends to prove some material point rather than merely proving that the defendant is a criminal. See id.
In Smith v. State, 314 Ark. 241, 862 S.W.2d 234 (1993), the defendant was charged with having sold cocaine to an undercover officer and had three other cases pending in which he had been charged with past drug deals to the same officer. In the trial on his cocaine sale, the prosecutor asked the officer if he had, on specific dates, seen the defendant before, to which the officer answered affirmatively. See id. There, we held that Rule 404(b) was not violated because the actual crimes, wrongs, or bad acts had not been admitted into evidence. See id. The instant case differs from Smith because, here, evidence of a prior controlled buy from Phavixay was actually admitted into evidence through the testimony of the police informant.
While the two controlled buys from Phavixay were similar and in close proximity of one another, we do not conclude that the first buy was independently relevant to the controlled buy on August 24. While this court has allowed evidence of prior crimes to establish modus operandi, the general purpose of proving a method of operation is for purposes of identification. See Diffee v. State, 319 Ark. 669, 894 S.W.2d 564 (1995). The record does not reflect where identity was an issue at trial. Furthermore, for the admission of modus operandi evidence, the methodology must be so unique that both acts can be attributed to one individual. See Frensley v. State, 291 Ark. 268, 724 S.W.2d 165 (1987). The record reveals the controlled buys from Phavixay were two fairly routine drug transactions and fails to show a unique methodology.
This court has also admitted prior drug offenses on several occasions to show a defendant’s intent. See Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996) (holding that evidence about Owens’s previous drug use and manufacture was admissible where intent was disputed at trial); Neal v. State, 320 Ark. 489, 898 S.W.2d 400 (1995) (holding that evidence of Neal’s past drug purchases were admissible in light of his defense that he had no knowledge that drugs were in his home); Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993) (holding that evidence of Scroggins’s previous drug sale was admissible to show his intent to deliver drugs in exchange for money); Lincoln v. State, 285 Ark. 107, 685 S.W.2d 166 (1985) (holding testimony regarding Lincoln’s prior drug sales was admissible during his trial on his possession-with-intent-to-deliver charge as proof of his intent). However, in the instant case, Phavixay was charged with only the actual delivery of methamphetamine. Intent was not at issue.
The defendant in Scroggins v. State, supra, was also charged with actual delivery, rather than possession with intent to deliver. While we upheld the admission of testimony about his prior drug sales to prove his intent, that case is distinguishable from the instant case because Scroggins was charged with delivery of a controlled substance in exchange for money. Scroggins would “front” the drugs to the informant without initial payment. Thus, testimony about the earlier controlled buy would have been relevant to prove his intent to receive money, at some point, in exchange for the drugs. No such issue exists in the instant case.
This court cannot perceive of any reason for the admission of Phavixay’s prior drug transaction other than to show he was a drug dealer likely to have sold drugs again on the particular date for which he was tried. This is precisely the type of evidence that Rule 404(b) was designed to exclude. For all these reasons, the decision of the circuit court is reversed, and the case is remanded for a new trial.
Reversed and remanded.
Corbin, Brown, and Gunter, JJ., dissent.
Phavixay further argued that the evidence should have been excluded under Arkansas Rule of Evidence 403; however, a Rule 403 analysis is unnecessary as the outcome of the case has been decided by this court based on Rule 404(b). | [
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PER CURIAM.
Thomas Burns, counsel for Appellant Brian Vinson, petitions this court to be relieved as counsel, and requests that Francis Parker Jones be appointed to represent Vinson. Also before us is Vinson’s motion to proceed in forma pauperis and his affidavit in support of his request to proceed in forma pauperis pursuant to Ark. Sup. Ct. R. 6-6 (2007).
On April 26, 2006, Vinson was sentenced to thirty-eight years in the Arkansas Department of Correction for aggravated assault, aggravated robbery, and theft of property. Vinson’s trial attorney, Thomas Burns, timely filed a notice of appeal on May 24, 2006. The due date for lodging the record expired on August 21, 2006, and no motion for extension of time was filed. On August 23, 2006, the circuit court entered an order, which declared Vinson indigent and appointed F. Parker Jones as the attorney on appeal. The docket sheet reveals that a partial record was tendered on May 16, 2007. On that date, Vinson, by and through Jones, filed a motion for rule on clerk with our court. In a per curiam order dated June 14, 2007, we granted Vinson’s motion for rule on clerk, however we held that the trial court lacked jurisdiction to relieve trial counsel and appoint appellate counsel after the notice of appeal from conviction had been filed. Vinson v. State, 370 Ark. 282, 258 S.W.3d 726 (2007) (per curiam). We said that if Vinson wished to pursue an appeal without Burns as counsel, Burns should file a motion to withdraw with our court, accompanied by Vinson’s request for indigency and an affidavit of indigency under Ark. Sup. Ct. R. 6-6. Those motions are now properly before us.
We find that Appellant Vinson is indigent, and we appoint Francis Parker Jones as counsel for Appellant. Accordingly, we grant Burns’s motion to be relieved as counsel.
Motions granted. | [
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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. Appellant filed a motion for rule on clerk after the clerk refused to docket his appeal and would not accept the record due to a failure to comply with Arkansas Rule of Appellate Procedure-Civil 5(b)(1)(C). We remanded this matter to the circuit court for an order showing compliance with Rule 5 at the time the extension was sought in the circuit court. See Bond v. State, 373 Ark. 37, 280 S.W.3d 20 (2008). We have now been provided an order that shows that the requirements of Rule 5 were not met.
We require strict compliance with Rule 5 at the time the extension is sought. Granting an extension is not a mere formality. Before a circuit court may enter an order of extension, the following requirements must be met:
1. The appellant must request the extension;
2. Notice must be provided to the appellee;
3. All parties must have the opportunity to be heard; and
4. The circuit court must make findings to support an extension.
See Ark. R. App. P. —Civ. 5(b)(1); Holsombach v. State, 366 Ark. 615, 237 S.W.3d 472 (2006). Upon remand for compliance with Rule 5(b)(1), the circuit court shall determine whether appellant complied with the rule at the time the original motion for extension of time was filed and granted. Byrer v. Colvard, 372 Ark. 460, 277 S.W.3d 209 (2008). Furthermore, 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. The record filed on resubmission of the motion for rule on clerk reveals that McGough did not comply with Rule 5 at the time the original motion for extension of time was filed and granted.
The State will not penalize a criminal defendant by declining to consider his first appeal when counsel has failed to follow appellate rules. Franklin v. State, 317 Ark. 42, 875 S.W.2d 836 (1994) (per curiam). In McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004), we clarified our treatment of motions for belated appeals and motions for rule on clerk.
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.
McDonald, 356 Ark. at 116, 146 S.W.3d at 891 (footnote omitted). While we no longer require an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he has erred and is responsible for the failure to perfect the appeal. See id. Mr. McGough does not admit fault, but his fault is clear from the record. Therefore, we direct the clerk of this court to accept the record and docket the appeal, and we refer the matter to the Committee on Professional Conduct.
Motion granted. | [
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JIM HANNAH, Chief Justice.
Leslie A. Young, a/k/a Leslie A. Williams, appeals an order of the Sharp County Circuit Court denying her motion to suppress. In Young v. State, 370 Ark. 147, 257 S.W.3d 870 (2007), Young’s convictions for capital murder, aggravated robbery, and attempted arson were affirmed; however, the case was returned to the circuit court under a limited remand for the circuit court to hold a new hearing on the suppression of Young’s in-custody statement. Young now appeals the circuit court’s decision denying her motion to suppress on remand.
In reviewing the denial of a motion to suppress a custodial statement, this court looks to see if the confession was the product of free and deliberate choice rather than intimidation, coercion, or deception. Reese v. State, 371 Ark. 1, 262 S.W.3d 604 (2007). When we review a trial court’s ruling on the voluntariness of a confession, we make an independent determination based on the totality of the circumstances. Id. We will reverse the circuit court only if its decision was clearly against the preponderance of the evidence. Flowers v. State, 362 Ark. 193, 208 S.W.3d 113 (2005). Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(2). We affirm the circuit court’s decision denying the motion to suppress.
At issue is an interrogation of Young by Sharp County Sheriff Dale Weaver. It took place in the Sharp County jail. Both parties agree that Young was advised of her Miranda rights by Arkansas State Trooper Jeremy Page prior to the interrogation by Weaver.
Trooper Page took custody of Young earlier that day on January 3, 2006, at about 1:15 p.m. at the county line between Sharp County and Independence County. He had the video recorder in his patrol car running at the time. The video portion of the tape shows only the scenery and passing vehicles; however, the audio portion recorded Page advising Young of her rights. Pursuant to testimony at the suppression hearing, and as confirmed by review of the audio recording on the video tape, Young was advised of her rights, acknowledged that she understood her rights, and, aside from a single complaint about handcuffs, made no further comment then or at any time while being transported by Page.
Elaine Moody testified that she was the “jail matron” at the Sharp County jail who received Young upon her arrival when Page turned Young over to the Sharp County Sheriffs Department. According to Moody, Young spoke to her in order to respond to questions regarding processing into custody; however, there was no discussion related to the crime for which Young was arrested.
After processing Young, Moody called Sheriff Weaver to inform him that it appeared that there might be blood on Young’s face and arms. Weaver came to the jail to determine if he should try to take samples from Young’s person.. Sharp County Sheriffs Deputy Wendy Flynn accompanied him. Weaver concluded there was no blood on Young’s face and arms that he could sample. He testified at the suppression hearing about his discussion with Young:
Well, there were some scratches on her arms and so I wanted to ask her about those scratches and prior to that I wanted to know if she had been Mirandized. So I asked her that. I said, Leslie have you been Mirandized? And she said does that mean I’ve been read my rights. And I said yes that’s what it means. And she said yes. And I said well, with that in mind would you want to speak to me about this? And she said yes. And so I asked her about the scratches on her arms.
Weaver then asked Young about where she was on the night of the murder. She answered those questions, and Weaver then told her that she had been seen in the area after the murder and that items from the victim’s house had been pawned by her husband. Young then denied any involvement in the murder or other crimes against the victim. According to Weaver, it was then that Young said, “I think I need to talk to a lawyer.” Weaver stopped the interrogation at this point. Deputy Flynn also testified and recounted essentially the same facts about the interrogation.
Young argues that her statement was not voluntary. To be admissible, a “statement must be voluntary ‘in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.’ ” Wofford v. State, 330 Ark. 8, 31, 952 S.W.2d 646, 657-58 (1997) (quoting Mauppin v. State, 309 Ark. at 246-47, 831 S.W.2d at 109 (1992) (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986))). Further, the statement was given while Young was in custody. An in-custody statement is presumptively involuntary, and the burden is on the State to prove by a preponderance of the evidence that a custodial statement was given voluntarily and was knowingly and intelligently made. Reese, supra.
Young was advised of her Miranda rights, acknowledged that she understood them, and, prior to submitting to interrogation, did not invoke her Miranda rights in any manner. Rather, she chose to submit to questioning by law enforcement. In Scott v. State, 298 Ark. 214, 217, 766 S.W.2d 428, 430 (1989), this court noted that “[t]he United States Supreme Court discussed waiver of the right to counsel in Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389 (1988),” and that “Patterson reemphasized the holding in Miranda that a proper warning, prior to waiver of rights, is necessary before the police may question an accused.” A criminal defendant may waive the Miranda rights when he or she is advised of the Miranda rights, fails to invoke those rights in any manner, and then proceeds to give inculpatory statements. In Ward v. State, 308 Ark. 415, 827 S.W.2d 110 (1992), the defendant was arrested on suspicion of murder and advised of his Miranda rights. While being transported to the police station, Ward stated that he had not hurt anybody and repeated an account of his encounter with the victim that he had given prior to his arrest. At the police station, Ward was again advised of his Miranda rights. Ward acknowledged that he understood his rights and agreed to talk to the officers on the condition that his statement not be taped. Ward also refused to sign the waiver-of-rights form, and yet made a statement that was then introduced at trial. The statements made after Ward was advised of his Miranda rights were admissible because he had been advised of his rights, acknowledged that he understood them, and chose to speak with law enforcement. Similarly in United States v. Ogden, 572 F.2d 501 (5th Cir. 1978), the court found that where Ogden was arrested, advised of his Miranda rights, indicated that he understood them, and nevertheless chose to speak with law enforcement and give inculpatory statements, those statements were admissible. In Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984), the criminal defendant was advised of his rights, made no comment invoking them, and thereafter answered questions. The statements were found to be voluntary and admissible.
Here, Young was advised of her rights, acknowledged that she understood her rights, and then chose to submit to interrogation. Weaver specifically asked her if she had been advised of her rights, and when she answered that she had, Weaver asked if keeping that in mind she wished to speak with him. She responded that she did. It is clear to this court that Young waived her Miranda rights by implication. We hold that the circuit court’s ruling is not against the preponderance of the evidence and affirm the circuit court’s decision that the statement was voluntary and admissible.
Affirmed.
The record reveals that the interrogation by SherifTWeaver occurred within no more than two hours of being advised of her rights.
If having been advised of the Miranda rights, a criminal defendant “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, [or if he] states that he wants an attorney, the interrogation must cease.” Miranda v. Arizona, 384 U.S. 436, 473-474 (emphasis in original). This holding in Miranda, supra, is reflected in Ark. R. Crim P. 4.5, which provides: “No law enforcement officer shall question an arrested person if the person has indicated in any manner that he does not wish to be questioned, or that he wishes to consult counsel before submitting to any questioning.”
Deputy Flynn testified that she did not recall Weaver asking Young, whether having her rights in mind she wished to speak with him. The circuit court accepted Weaver’s version, and to the extent this calls for a decision on credibility of the witnesses, that was an issue left to the sound discretion of the circuit court. See Reese v. State, 371 Ark. 1, 262 S.W.3d 604 (2007). | [
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Annabelle Clinton Imber, Justice.
Appellant David Sykes appeals the Craighead County Circuit Court’s grant of summary judgment in favor of Appellees Jack Williams, First Coast Intermodal Services, Inc. (“First Coast”), and Baxter Healthcare Corporation (“Baxter”). In support of his three points on appeal, Sykes makes the following arguments: 1) He is not required to demonstrate that Appellees were negligent in order to proceed in his circuit-court action against them; 2) His burden of proof is met by the fact that Appellees failed to carry workers’ compensation insurance; 3) Baxter is a prime contractor for purposes of Arkansas Code Annotated section ll-9-402(a) (Supp. 2007), making it liable for compensation to Sykes. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1 — 2(b)(1) & (6) (2007), as this appeal presents an issue of first impression and a question concerning interpretation of a statute. We find no error and affirm.
The facts are not in dispute. Sykes was employed as a truck driver for Williams. Williams acted as a freight lessor for First Coast, which was a freight carrier for Baxter, a healthcare company marketing medical devices and pharmaceuticals. Sykes regularly drove a route from Memphis, Tennessee, to Jacksonville, Florida, in a truck owned by Williams. In October of 2002, he hauled a trailer from Memphis to a Baxter facility in Cleveland, Mississippi, where he was to drop off the trailer and pick up another one to be delivered to Jacksonville. While at the Baxter facility in Cleveland, Sykes sustained an injury to his back as he was disconnecting the trailer from the truck.
Sykes filed a claim with the Arkansas Workers’ Compensation Commission. Fie was later informed by the Commission that Williams did not have a policy of workers’ compensation insurance and was not an authorized self-insured employer. The Commission notified Sykes of his right to pursue a claim in tort pursuant to Arkansas Code Annotated section 11 — 9—105(b) (Repl. 2002). Sykes filed a complaint in Craighead County Circuit Court against Williams, First Coast, and Baxter. He alleged that Williams was negligent in failing to provide him a safe workplace and in failing to secure workers’ compensation insurance. Sykes contended that First Coast and Baxter were prime contractors and statutory employers and were negligent in failing to provide him a safe workplace and in failing to secure workers’ compensation insurance or to ascertain that it was provided by another defendant. Additionally, Sykes alleged that First Coast was negligent in hiring Williams and that Baxter was negligent in hiring First Coast. Sykes sought recovery in the amount of 1.6 million dollars.
Williams, First Coast, and Baxter filed motions for summary judgment. They argued that, by virtue of Sykes’s election to pursue a fault-based claim in tort rather than recovery under workers’ compensation law, Sykes was required to prove negligence on their part, which he could not do. Williams, First Coast, and Baxter pointed to Sykes’s deposition, wherein he stated that he was not aware of any wrongdoing that contributed to his injury. Sykes responded to the motions by arguing that an employer sued in tort pursuant to Arkansas Code Annotated section ll-9-105(b) is subject to strict liability. Alternatively, he alleged that he had established negligence by showing that Appellees violated statutory law in failing to secure workers’ compensation insurance. The circuit court rejected Sykes’s arguments and granted the motions for summary judgment, and Sykes filed a timely notice of appeal.
The standard of review used by this court in reviewing a grant of summary judgment is well settled. 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. Benton County v. Overland Dev. Co., Inc., 371 Ark. 559, 268 S.W.3d 885 (2007). 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. After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable minds might reach different conclusions from those undisputed facts. Id. On appeal, 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 question of 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 review issues of statutory construction de novo. 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. Our court construes 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. However, we will not give statutes a literal interpretation if it leads to absurd consequences that are contrary to legislative intent. 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.
I. Negligence Under Arkansas Code Annotated Section lI-9-105(b)
For his first point on appeal, Sykes contends that the circuit court committed reversible error by requiring a showing of negligence. He argues that Arkansas Code Annotated section 11-9-105(b), the exclusive-remedy provision that also permits suits in tort against employers who fail to pay compensation, is intended to serve as a penalty for those employers who do not maintain workers’ compensation insurance for their employees. Thus, Sykes contends, it follows that employers sued under this provision are stripped of all defenses and subject to strict liability.
The statute at issue reads as follows:
(b)(1) However, if an employer fails to secure the payment of compensation as required by this chapter, an injured employee, or his or her legal representative in case death results from the injury, may, at his option, elect to claim compensation under this chapter or to maintain a legal action in court for damages on account of the injury or death.
(b)(2) In such action it shall not be necessary to plead or prove freedom from contributory negligence, nor may the defendant-employer plead as a defense that the injury was caused by the negligence of a fellow servant, that the employee assumed the risk of his or her employment, or that the injury was due to the contributory negligence of the employee.
Ark. Code Ann. § 11-9-105 (Repl. 2002). Provisions of workers’ compensation law are to be strictly construed. Id. § 11-9-704(c)(3); Hapney v. Rheem Mfg. Co., 341 Ark. 548, 26 S.W.3d 771 (2000). Strict construction is narrow construction and requires that nothing be taken as intended that is not clearly expressed. Hapney v. Rheem Mfg. Co., supra. The doctrine of strict construction requires this court to use the plain meaning of the language employed. Id.
Under the plain meaning of Arkansas Code Annotated section ll-9-105(b), the no-fault theory of workers’ compensation clearly does not carry over to suits filed in tort. The statute does not state that suits filed in tort are to be based on a theory of strict liability, and under our rules of strict construction, we must refrain from inferring legislative intent in the absence of clear expression. Hapney v. Rheem Mfg. Co., supra. When the words of the statute are given their ordinary and usually accepted meaning, the phrase “legal action in court” indicates a tort suit. To establish a prima facie case of negligence in such a suit, a plaintiff must show that he or she sustained damages, that the defendant was negligent, and that the defendant’s negligence was a proximate cause of the damages. Morehart v. Dillard Dep’t Stores, 322 Ark. 290, 908 S.W.2d 331 (1995). Therefore, to maintain a suit in tort contemplated by Arkansas Code Annotated section 11 — 9—105 (b), a plaintiff must prove negligence on the part of the defendant.
Furthermore, subsection (b)(2) excepts three common-law defenses from those generally available to defendants in tort actions. The defendant-employer, in a suit brought pursuant to Arkansas Code Annotated section 11-9-105(b), is precluded from asserting fellow-servant negligence, assumption of the risk, and contributory negligence. Ark. Code Ann. § 11-9-105(b)(2). If the legislature had intended that liability under Arkansas Code Annotated section ll-9-105(b) be strict, then there would have been no need to except fellow-servant negligence, assumption of the risk, and contributory negligence from the available defenses. Under a strict-liability interpretation, all of subsection (b)(2) would be superfluous. Our principles of statutory interpretation do not allow this result. This court construes statutes so that no word is left void, superfluous, or insignificant. Ryan & Co. AR, Inc. v. Weiss, supra.
As Appellees point out, the essence of Arkansas Code Annotated section ll-9-105(b) is election of remedies. We have previously addressed the relationship between burden of proof and amount of recovery in workers’ compensation cases:
[T]he purpose of workers’ compensation statutes was to change the common law by shifting the burden of all work-related injuries from individual employers and employees to the consuming public. In that effort the matter of fault... is ordinarily immaterial. Employers were compelled to give up the common-law defenses of contributory negligence, fellow servant, and assumption of risk. Employees were compelled to give up the chance of recovering unlimited damages in fault-related cases in return for a certain recovery in all work-related cases.
Simmons First Nat’l Bank v. Thompson, 285 Ark. 275, 278-79, 686 S.W.2d 415, 417 (1985). In other words, workers’ compensation offers certain but limited recovery, while tort law offers unlimited recovery that is nonetheless uncertain, because the plaintiff must prove fault. We conclude that the legislature, in enacting Arkansas Code Annotated section ll-9-105(b), could not have intended that an injured employee be able to choose between certain but limited recovery under workers’ compensation, and certain and unlimited recovery in a tort suit wherein he or she is not required to establish negligence. The option of guaranteed recovery in tort would not be sensible, and an interpretation that is not sensible offends our standards of statutory interpretation. Ryan & Co. AR, Inc. v. Weiss, supra. As we stated in Simmons First, “[t]he plaintiffs here are attempting to return to the common-law system based on fault, when it is to their advantage to do so, but at the same time to retain the assured benefits of workers’ compensation regardless of fault. The invalidity of their position is too plain to require further discussion.” Simmons First Nat’l Bank v. Thompson, 285 Ark. at 279, 686 S.W.2d at 417-18.
We find no merit in Sykes’s argument that the statute deprives employers of all defenses as a penalty for their failure to secure workers’ compensation coverage for their employees. We have no doubt that the statute was intended to penalize employers; however, it does not do so by eliminating all otherwise available defenses. Instead, employers subject to Arkansas Code Annotated section ll-9-105(b) lose the exclusivity of the remedy. Section ll-9-105(a) guarantees that the “rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee.” Ark. Code Ann. § ll-9-105(a) (Repl. 2002). Subsection (b) provides the exception, and thus the penalty, for employers who fail to secure the payment of compensation. Id. § 11-9-105 (b). Employers are penalized further in that they are subject to the possibility of unlimited recovery if sued in tort. Moreover, an injured employee’s chances of success in a tort action are enhanced by the fact that the employer is precluded from asserting the affirmative defenses of fellow-servant negligence, assumption of the risk, and contributory negligence. Id. § ll-9-105(b)(2). Section 105(b) penalizes employers without subjecting them to strict liability.
We note that a majority of jurisdictions addressing the question under statutes similar to Arkansas Code Annotated section 11 — 9—105(b) have concluded that the alternative remedy of a tort action does not operate on a theory of strict liability. In a case arising out of South Dakota, the defendant-employer, who had elected not to comply with South Dakota’s workers’ compensation law, was subject to an action for damages for the injury or death of an employee resulting from negligence attributable to it. Hossack v. Metzger, 156 F.2d 501 (8th Cir. 1946). The Eighth Circuit Court of Appeals noted that, in such an action, “the burden is upon the plaintiff employee to prove that the negligence of his employer or of one for whose negligence the employer is legally responsible was the proximate cause of his injury.” Id. at 503; see also Bath Mills v. Odom, 168 F.2d 38 (4th Cir. 1948); Shoaf v. Fitzpatrick, 104 F.2d 290 (6th Cir. 1939). Most states, including the District of Columbia, subscribe to the rule that the injured employee bears the burden of proving negligence on the part of the employer. Other states provide a presumption of negligence, or prima facie evidence of negligence by virtue of the employee’s injury, which the employer bears the burden of rebutting. Only one state does not require a showing of negligence in a tort action brought under the statute allowing for an alternative remedy for injured employees of employers who fail to comply with workers’ compensation requirements. See Thorson v. Mandell, 525 N.E.2d 375 (Mass. 1988). Thus, our court joins the vast majority of courts in rejecting recovery based on a theory of strict liability when an injured employee elects to pursue the alternative remedy of a tort action against the employer who failed to secure workers’ compensation coverage.
II. Sykes’s Burden of Proof
For his second point on appeal, Sykes argues alternatively that, even if liability in a tort action under Arkansas Code Annotated section 11 — 9—105(b) is not strict, he has established Appellees’ negligence by a showing that they failed to maintain workers’ compensation insurance coverage. Sykes cites case law for the proposition that the failure of a defendant to perform a duty imposed upon him or her by statute is evidence of negligence on his or her part. Mays v. Ritchie Grocer Co., 177 Ark. 35, 5 S.W.2d 728 (1928). However, the same authority also stands for the rule that “such negligent conduct, in the absence of evidence showing it to have been the proximate cause of the injury complained of, furnishes no legal ground of complaint.” Id. at 35, 5 S.W.2d at 729. Appellees’ noncompliance with Arkansas Code Annotated section 11-9-404 (Supp. 2007), in failing to secure the payment of compensation, may have been negligent. Yet, without a showing that such negligence was the proximate cause of Sykes’s injuries, there can be no recovery of damages.
The burden rests upon the plaintiff to show by a preponderance of the evidence that his or her injuries were caused by some negligent act or omission of the defendant. Mangrum v. Pigue, 359 Ark. 373, 198 S.W.3d 496 (2004). Juries are not permitted to guess or to speculate as to the proximate cause of an alleged injury. Id. We have said that proximate cause is that cause which, “in a natural and continuous sequence, produces damage.” Sluder v. Steak & Ale of Little Rock, Inc., 361 Ark. 267, 275, 206 S.W.3d 213, 218 (2005). It simply cannot be said here that Appellees’ failure to maintain insurance coverage produced Sykes’s back injury.
Sykes insists that Appellees’ failure to maintain insurance coverage produced his economic injury, in that it caused him to incur medical bills that otherwise would have been covered by insurance. However, this argument is not properly preserved for our review, as it was not raised below. It is elementary that our court will not consider arguments made by an appellant for the first time on appeal. Hackelton v. Malloy, 364 Ark. 469, 221 S.W.3d 353 (2006). We will not do so because it is incumbent on the parties to raise arguments initially to the trial court to give that court an opportunity to consider them. Id. Otherwise, this court would be placed in the position of reversing a trial court for reasons never presented to that court. Id.
III. Baxter as Prime Contractor
Finally, Sykes alleges that Baxter is a prime contractor for purposes of Arkansas Code Annotated section ll-9-402(a) (Supp. 2007), which provides: “Where a subcontractor fails to secure compensation required by this chapter, the prime contractor shall be liable for compensation to the employees of the subcontractor unless there is an intermediate subcontractor who has workers’ compensation coverage.” The circuit court found this argument to be moot, and we affirm that ruling.
A finding that Baxter qualified as a prime contractor for purposes of Arkansas Code Annotated section ll-9-402(a) would afford Sykes no relief at this stage, as he has elected to sue in tort. Section 402(a), which makes a prime contractor liable for compensation to employees of subcontractors who fail to secure compensation, is a workers’ compensation statute that governs claims filed with the Arkansas Workers’ Compensation Commission. Therefore, the argument is moot.
Affirmed.
See Ehredt v. Dehavilland Aircraft Co. of Can., Ltd., 705 P.2d 913 (Alaska 1985); Hammels v. Britten, 85 P.2d 992 (Ariz. 1939); Garcia v. De Leon, 59 A.2d 637 (D.C. 1948); Fitch v. Mayer, 258 S.W.2d 923 (Ky. Ct.App. 1953); Brown v. Standard Oil Co., 14 N.W.2d 797 (Mich. 1944); Morgan v. Robacker, 151 N.Y.S.2d 836 (N.Y. App. Div. 1956); Muldrow v. Weinstein, 68 S.E.2d 249 (N.C. 1951); Workman v. Anderson Music Co., 149 P.3d 1060 (Okla. Civ. App. 2006); McGinniss v. Brown, 204 S.W.2d 334 (Tenn. Ct. App. 1947); Sears, Roebuck & Co. v. Robinson, 280 S.W.2d 238 (Tex. 1955); Bates v. Sirk, 230 S.E.2d 738 (W.Va. 1976).
See Hall v. Burton, 19 Cal. Rptr. 797 (Cal. Dist. Ct.App. 1962); Stroup v. Reno, 530 N.W.2d 441 (Iowa 1995); Sheppick v. Albertson’s, Inc., 922 P.2d 769 (Utah 1996).
Prior to the 2005 amendment, the statute read: “Where a subcontractor fails to secure compensation required by this chapter, the prime contractor shall be hable for compensation to the employees of the subcontractor.” Ark. Code Ann. § 1 l-9-402(a) (Repl. 2002). | [
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ANNABELLE CLINTON IMBER, Justice.
The Arkansas Court of Appeals certified the instant case to this court on a jurisdictional question: whether the circuit court’s order was final and appealable under our rules of civil procedure, when the appellant/defendant Jane Bevans nonsuited all of her compulsory counterclaims against the appellee/plaintiff Deutsche Bank, and the circuit court’s subsequent order only addressed Deutsche Bank’s claims against Bevans. We conclude that in such circumstances the circuit court’s order is not a final, appealable order, and we dismiss Bevans’s appeal.
Pursuant to Arkansas Rule of Appellate Procedure - Civil 2(a)(1), a party may appeal from a final judgment or final decree of the circuit court. Ark. R. App. P. - Civil 2(a)(1) (2007). Absent a certificate from the circuit court directing that the judgment is final, “any judgment, order, or other form of decision, however designated, which adjudicates fewer than all the claims or rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties.” Ark. R. Civ. P. 54(b)(2) (2007) . Finality of an order appealed from is a jurisdictional issue, and, therefore, it is a matter this court will consider even when the parties do not raise it. See Advanced Envtl. Recycling Techs., Inc. v. Advanced Control Solutions, Inc., 372 Ark. 286, 275 S.W.3d 162 (2008) .
Bevans executed a mortgage on her residence in favor of Argent Mortgage Company, LLC, along with an adjustable rate promissory note. Believing that the mortgage company had defrauded her by issuing a promissory note with a high-interest rate, Bevans sought advice from D. Scott Heinman and Kurt F. Johnson of the Dorean Group. Based upon the advice she received from them, Bevans stopped making payments on her note and executed a quitclaim deed that transferred title ownership in her residence to Heineman and Johnson.
On January 19, 2005, Deutsche Bank filed a complaint in foreclosure against Bevans, Heineman, and Johnson, alleging that Bevans was in default on the loan. The complaint stated that Deutsche Bank served as trustee of Argent Securities, Inc., and was the current holder of the note and mortgage on Bevans’s residence. Bevans filed several compulsory counterclaims against Deutsche Bank, asserting breach of contract, wrongful foreclosure, violations of the Federal Truth-In-Lending Act, violations of the Real Estate Settlement Procedures Act, violations of the Unfair and Deceptive Trade Practices Act, common-law fraud, and Yield-Spread-Premium fraud. Bevans’s pleadings also included a claim of common-law fraud against Heineman and Johnson. She eventually filed a motion for default judgment against Heineman and Johnson. Deutsche Bank also filed a motion for summary judgment against the two men.
On October, 25, 2006, Bevans filed a motion for nonsuit of her counterclaims, asking that the circuit court dismiss the claims without prejudice. At a hearing the next day, the circuit court judge orally granted Bevans’s motion for a nonsuit of her claims against Deutsche Bank. The court then granted both Bevans’s motion for default judgment and Deutsche Bank’s motion for summary judgment against Heineman and Johnson, and the court agreed to restore title to the property back into Bevans’s name.
Following a trial on Deutsche Bank’s claims, the circuit court entered an order and decree of foreclosure on December 12, 2006. The order includes the following reference to the nonsuit in a section labeled “Background”: “On October 25, 2006, Bevans dismissed her counterclaim.” Otherwise, the order fails to address the nonsuit motion.
Pursuant to Rule 41(a)(1) of the Arkansas Rules of Civil Procedure, a claim may be dismissed without prejudice to a future action by the plaintiff before final submission of the case to the jury; however, “it is effective only upon entry of a court order dismissing the action.” Ark. R. Civ. P. 41(a)(1) (2007). The provisions of Rule 41 also apply to the dismissal of any counterclaim, cross-claim, or third-party claim. Ark. R. Civ. P. 41(c) (2007). Here, the circuit court made an oral ruling from the bench, and the “Background” section of the order recites that “Bevans dismissed her counterclaim.” The written order does not reflect the court’s disposition of the counterclaims. Rule 41(a) clearly states that the dismissal of any claim is not effective until entry of an order dismissing the claim. Thus, in the absence of a written order dismissing Bevans’s counterclaims, the circuit court’s foreclosure order is not final and appealable.
In any event, even if a written order dismissing Bevans’s counterclaims had been issued, the circuit court’s foreclosure order in this case would not have been final. As stated above, an order or judgment is not considered final and appealable unless it disposes of all the parties and all the claims. See Ark. R. Civ. P. 54 (2007). Our court has never decided a case with the exact issue presented here. We have, however, decided cases that are particularly instructive when examining the issue of finality, as well as the related issue of res judicata. In Haile v. Arkansas Power & Light Co., 322 Ark. 29, 907 S.W.2d 122 (1995), this court held that a plaintiff may not take a voluntary nonsuit as to some of its claims and then appeal from the circuit court’s order disposing of the plaintiffs other claims because a voluntary nonsuit without prejudice leaves the plaintiff free to refile the claim; therefore, the order is not considered final. Id.; see also Ratzliff v. Franz Foods of Ark., 255 Ark. 373, 500 S.W.2d 279 (1973) (decided prior to the adoption of our rules of civil procedure). We have also held that when all claims against one defendant are nonsuited so that the defendant is effectively dismissed from the suit, the circuit court’s order against a second defendant is a final, appealable order because a plaintiff is not required to sue prospective defendants simultaneously. Advanced Envtl. Recycling Techs., Inc. v. Advanced Control Solutions, Inc., supra; Driggers v. Locke, 323 Ark. 63, 913 S.W.2d 269 (1996).
In Lemon v. Laws, 305 Ark. 143, 806 S.W.2d 1 (1991), the court was asked to decide whether a plaintiff was barred by the doctrine of res judicata from refiling the plaintiffs previously nonsuited claims. Id. We held that a plaintiff has an absolute right to take a voluntary nonsuit under Rule 41(a) before the final submission of the case for trial. Id. We pointed out that the first nonsuit and dismissal is without prejudice, thereby leaving the plaintiff free to refile his or her claim. Id. In Lemon, the plaintiff nonsuited his claim and the court proceeded to enter an order in favor of the defendant on his counterclaim, but when the plaintiff attempted to refile his claim, the defendant asserted that the claim was barred by res judicata. Id. We determined that to apply the doctrine of res judicata to the plaintiffs nonsuited claim would be changing the absolute right under Rule 41(a) to a qualified right. Id. Accordingly, the court held that res judicata did not apply. Id.
In Linn v. Nationsbank, 341 Ark. 57, 14 S.W.3d 500 (2000), this court decided the issue of res judicata as to compulsory counterclaims that have been nonsuited. Id. In that case, Nationsbank filed a complaint for foreclosure against the Linns’ bed-and-breakfast because the Linns had defaulted on their construction loans. Id. The Linns then filed counterclaims for breach of contract, fraudulent misrepresentation, and negligence arising from Nationsbank’s refusal to honor an alleged oral agreement to provide permanent financing after construction of the bed-and- breakfast was completed. Id. The Linns nonsuited their counterclaims, which were dismissed without prejudice, and the court proceeded to enter a foreclosure decree in favor of Nationsbank. Id. The Linns then attempted to file their original counterclaims and some additional claims in circuit court. Id. Nationsbank argued that the Linns’ claims were compulsory counterclaims, pursuant to Ark. R. Civ. P. 13, and were barred by the doctrine of res judicata and collateral estoppel. Id. The circuit court agreed and entered summary judgment in favor of Nationsbank. Id. On appeal, the Linns argued that the circuit court erred in dismissing their claims. Id.
In deciding the issue on appeal, our court analyzed the doctrine of res judicata, a common law principle, in the context of compulsory counterclaims under Rule 13 and voluntary nonsuits under Rule 41. Id. We explained that the purpose behind Rule 13 is to require parties to present all existing claims simultaneously or be forever barred, thereby preventing a multiplicity of suits arising from the same set of circumstances. Id. Yet, while Rule 13 requires compulsory counterclaims to be brought, or else waived, it does not state whether a compulsory claim must be litigated in order to prevent a bar. Id. This court then reiterated a party’s absolute right to voluntarily dismiss his or her claims without prejudice and to refile those claims within a year, pursuant to Rule 41. Id. (citing Lemon v. Laws, supra). In light of the fact that the Linns filed their counterclaims in compliance with Rule 13 and were also allowed to voluntarily dismiss those claims without prejudice, under Rule 41, we concluded that the doctrine of res judicata did not bar the Linns from refiling their previous counterclaims. Id.
Based upon our holding in Linn v. Nationsbank, supra — that a defendant who nonsuits all of his or her compulsory counterclaims is not barred from bringing those claims against the plaintiff again — it follows that an order or judgment providing for the nonsuit of those counterclaims while entering a judgment on the plaintiff s claims is not a final, appealable order under Rule 54(b) of the Arkansas Rules of Civil Procedure. Or, stated another way, if a party is free to refile his or her compulsory counterclaims that arise out of the same transaction or occurrence as claims that are decided by the circuit court, the possibility for piecemeal appeals exists. The reason we were asked by the parties in Linn to address the res judicata issue, and not the finality issue, was that the defendants did not attempt to appeal the original foreclosure decree; instead, they refiled their previous counterclaims in circuit court.
The facts in Linn are strikingly similar to the facts in the instant appeal. Deutsche Bank filed a foreclosure action against the defendant Bevans. Bevans then filed compulsory counterclaims that all arose out of the financing arrangement, and after she voluntarily nonsuited all of her counterclaims against Deutsche Bank, the bank’s claims were decided at trial. Instead of refiling her counterclaims in circuit court, Bevans has appealed from the judgment against her. Because her nonsuited claims were compulsory counterclaims, Bevans would have been able to refile her claims. See Linn v. Nationsbank, supra; Lemon v. Laws, supra. Therefore, the order she now appeals from is not a final, appealable order.
The instant case is distinguishable from our opinions in Advanced Environmental Recycling Technologies, Inc. v. Advanced Control Solutions, Inc., supra; and Driggers v. Locke, supra, in which we held that an order was final when the plaintiff dismissed all of his or her claims against one defendant. In those cases, the plaintiff dismissed claims against one of many defendants, and the defendant was effectively dismissed from the case. In the instant case, the defendant nonsuited her compulsory counterclaims against the plaintiff, but both parties remained in the case until the plaintiffs claims were decided. For these reasons, we dismiss Bevans’s appeal without prejudice.
Dismissed.
Pursuant to Admin. Order No. 2(b)(2), a judgment, decree, or order is “entered” when stamped or otherwise marked by the clerk with the date, time, and the word “filed.” | [
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Per Curiam.
Thomas B. Devine III, a full-time, state-salaried public defender for the Sixth Judicial District, was appointed by the trial court to represent appellant, Genre Page, an indigent defendant. Following a jury trial, Page was convicted of capital murder and sentenced to life without parole. A notice of appeal was timely filed and a request for the transcribed record was filed in this case.
Mr. Devine now asks to be relieved as counsel for appellant in this criminal appeal based on the case of Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000) (holding that full-time, state-salaried public defenders were ineligible for compensation for their work on appeal), and Tester v. State, 341 Ark. 281, 16 S.W.3d 227 (2000) (per curiam) (relieving appellant’s court-appointed public defender and appointing new counsel on appeal).
Since the time of those decisions, however, the law was changed by the General Assembly. Act 1370 of 2001 provided in part: “Persons employed as full-time public defenders who are not provided a state-funded secretary, may also seek compensation for appellate work from the Arkansas Supreme Court or the Arkansas Court of Appeals.” That provision is now codified at Ark. Code Ann. § 19-4-1604 (b)(2)(B) (Repl. 2007).
Mr. Devine’s motion states that he is provided with a full-time, state-funded secretary. Accordingly, we grant his motion to withdraw as attorney. Tim Cullen will be substituted as attorney for appellant in this matter. The clerk will establish a new briefing schedule. | [
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PER CURIAM.
Appellants, Gloria Preston, administratrix of the estate of Richard L. Preston and Gloria Preston, individually, and Thomas Robertson, as trustee for the bankruptcy estate of Gloria Preston, have appealed the June 13, 2007 order of the trial court granting summary judgment to appellees, Fred E. Stoops, Sr., Richard D. Marrs, Eddie D. Ramirez, and Richardson, Stoops, Richardson & Ward, P.C. Appellants also appeal the July 18, 2007 order of the trial court on appeüants’ Motion for Definite Findings of Fact and Conclusions of Law. However, we are unable to consider appellants’ appeal at this time because their brief is not in compliance with Ark. Sup. Ct. R. 4-2(b) (2007).
This case was decided on a summary-judgment motion filed by appellees and, although appellants fail to include the motion for summary judgment in their addendum, appellees included it in their supplemental addendum. Appellants filed three complaints: an original complaint, which is included in appellees’ supplemental addendum; an amended complaint, which is included in appellants’ addendum; and a second amended complaint, which is not contained in either addendum. Additionally, the circuit court, in orders dated June 13, 2007, andjuly 18, 2007, references appellees’ answer to the amended complaint, appellants’ response to the summary judgment, and a reply to the summary judgment. None of these pleadings are in either addendum.
Arkansas Supreme Court Rule 4-2(a)(8) requires the inclusion in the addendum of the “relevant pleadings, documents, or exhibits essential to an understanding of the case and the Court’s jurisdiction on appeal.” Arkansas Supreme Court Rule 4-2(b)(3) explains the procedure to be followed when an appellant has failed to supply this court with a sufficient brief, providing as follows:
Whether or not the appellee has called attention to deficiencies in the appellant’s abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4-2(a) (5) and (8). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, Addendum and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.
Accordingly, we order appellants to file a substituted addendum containing all relevant pleadings within fifteen days from the date of entry of this order. According to Rule 4-2(b)(3), if appellants fail to file a complying brief within the prescribed time, the orders appealed from may be affirmed for noncompliance with the rule.
After service of the substituted brief, the appellees shall have an opportunity to file a responsive brief in the time prescribed by the Supreme Court Clerk, or to rely on the brief that they have previously filed in this appeal.
Rebriefing ordered.
We note that appellants included a “Brief in Support of Response to Motion for Summary Judgment” in their addendum, and that the brief is also included in the record. There appears to be no separate response in the record. | [
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Per Curiam.
Appellant Randolph Morris, by and through his attorney, John F. Gibson, Jr., has filed a motion for rule on clerk. Appellant was convicted of one count of possession of cocaine with intent to deliver and one count of fleeing. The record reflects that Appellant received an aggregate sentence of 480 months’ imprisonment in the Arkansas Department of Correction. However, on July 17, 2007, a judgment and commitment order was entered erroneously reflecting that Appellant was being transferred to the Department of Community Punishment. On August 2, 2007, an amended judgment and commitment order was entered correcting this error. Appellant filed a notice of appeal from the original judgment order onjuly 17,2007, and a notice of appeal from the amended judgment order on August 21, 2007.
On September 6, 2007, the circuit court issued an order extending the time for filing the record on appeal until March 2, 2008. This deadline was calculated based on the date of the amended judgment order. As this date fell on a Sunday, the time to file the record on appeal was extended to the next business day, March 3, 2008, pursuant to Ark. R. App. P.-Crim. 17. Appellant tendered the record on March 3, 2008. The supreme court clerk properly refused to file the record because it had been tendered outside the time period for docketing the case based on the date the original judgment order was entered of July 17, 2007.
The time in which a record on appeal must be lodged in criminal matters is governed by Ark. R. App. P.-Civ. 5(b)(2), applicable pursuant to Ark. R. App. P.-Crim. 4(a). The rule provides that a trial court cannot extend the time for the filing of the record on appeal to a date more than seven months from the date of the entry of the judgment or order, or from the date on which a timely postjudgment motion is deemed to have been disposed of under Rule 4(b)(1), whichever is later. The order extending the time to file the record must be entered within ninety days from the filing of the first notice of appeal. Ark. R. App. P.-Civ. 5(a).
Here, it is apparent from the record that Appellant was sentenced to the Arkansas Department of Correction. Thus, the original judgment order transferring Appellant to the Department of Community Punishment contained a clerical error. Pursuant to Ark. R. Civ. P. 60(b), the circuit court may at any time correct clerical mistakes in judgments. See also Carter v. Norris, 367 Ark. 360, 240 S.W.3d 124 (2006) (per curiam). The only change in the amended judgment was correction of this clerical mistake. Both the original notice of appeal and the amended notice of appeal state that Appellant is appealing from the judgment in favor of the State. Thus, the original judgment order is that which is being appealed from. As such, the deadline for filing the record on appeal should have been calculated from the date of the original judgment order, and not from the date of the amended judgment order. See Ark. R. App. P.-Civ. 5(b); Bulsara v. Watkins, 370 Ark. 461, 261 S.W.3d 461 (2007) (per curiam). The original judgment order was entered on July 17, 2007, thus the time period for filing the record on appeal expired on February 18, 2008. Appellant’s tendering of the record on March 3, 2008, was therefore untimely.
Despite Appellant’s failure to properly perfect this appeal, the State cannot penalize a criminal defendant by declining to consider his first appeal when counsel has failed to follow appellate rules. Franklin v. State, 317 Ark. 42, 875 S.W.2d 836 (1994) (per curiam). In McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004), we clarified our treatment of motions for belated appeals and motions for rule on clerk.
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.
Id. at 116, 146 S.W.3d at 891 (footnote omitted). While we no longer require an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he has erred and is responsible for the failure to perfect the appeal. See id. Mr. Gibson does not admit fault, but his fault is clear from the record. Therefore, we direct the clerk of this court to accept the record and docket the appeal, and we refer the matter to the Committee on Professional Conduct.
Motion granted. | [
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Paul E. Danielson, Justice.
Appellant John F. Payne appeals from the circuit court’s order granting appellee Susan France’s motion for summary judgment. In its order, the circuit court found that Mr. Payne was the father of Ms. France’s minor child, T.J.F., and ordered Mr. Payne to pay child support in the amount of $1500 per month. On appeal, Mr. Payne asserts that the circuit court erred in exercising personal jurisdiction over him. We hold that the circuit court’s exercise of personal jurisdiction was proper, and we affirm.
The facts are these. On March 23, 2006, Ms. France filed a petition for paternity, alleging that on March 4, 1993, she gave birth to a child, T.J.F., while she was married to Ricky France. She asserted that she and Mr. France divorced on March 26, 1996, and that in the divorce decree, T.J.F. was found to be of the marriage, and Mr. France was ordered to pay child support. She contended that, since the entry of the decree, a paternity test had been administered showing that Mr. Payne was the biological father of T.J.F. Accordingly, she requested that a decree be entered declaring Mr. Payne the child’s natural father, awarding her custody and child support, and awarding her attorney’s fees and costs.
Mr. Payne moved to dismiss the petition, alleging that the circuit court lacked subject-matter jurisdiction and lacked personal jurisdiction over him. In his brief in support of his motion, Mr. Payne alleged that Arkansas Code Annotated § 9-17-201 (Repl. 2008) governed whether the circuit court had jurisdiction over him as a nonresident of the State of Arkansas to determine parentage. In an amended motion to dismiss and answer, Mr. Payne further asserted, in part, the following: (1) that he had not been served personally with summons in the State of Arkansas; (2) that he had not submitted to the jurisdiction of the state by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction; (3) that he was not, nor had he ever been, a resident of the State of Arkansas; (4) that the child alleged to be his did not live in the State of Arkansas as a result of any of his acts or directives; (5) that he had not engaged in any sexual intercourse in the State of Arkansas by which the subject child of the action could have been conceived; and (6) that he had not asserted parentage in the putative father registry.
Ms. France responded, submitting that minimum contacts existed between Mr. Payne and the State of Arkansas, making the exercise of jurisdiction fair, based on the following:
Defendant has voluntarily directed his activities toward Arkansas and has purposely availed himself of the benefits and protection of Arkansas and its laws by traveling and purposefully utilizing the state óf Arkansas to conduct business for the betterment of his company. Moreover, Defendant willfully presented himself to a paternity test in Pulaski County....
On August 7, 2006, the circuit court entered an order directing Mr. Payne to provide certain information requested of him by Ms. France and noting that failure to abide by the order would cause Mr. Payne to be found in contempt. Ms. France subsequently filed a motion for contempt and continuance, in which she stated that she had not received the information from Mr. Payne that the circuit court had ordered him to produce. She stated that discovery was required to prove her contention that the circuit court had personal jurisdiction over Mr. Payne and requested that Mr. Payne be held in contempt.
Ms. France then filed a second amended and substituted petition for paternity, restating the assertions made in her prior petition and alleging that the circuit court had the authority to exercise personal jurisdiction over the parties, specifically stating:
7. That the Defendant and Plaintiff voluntarily entered into a written agreement in Arkansas for performance of genetic testing to determine paternity.
8. That genetic testing to determine paternity was administered in Arkansas.
9. That witnesses to the genetic testing to determine paternity reside in Arkansas.
Ms. France again requested that a decree be entered declaring Mr. Payne to be the natural father of T.J.F., maintained that she was the proper person to have custody of the child, subject to Mr. Payne’s right to reasonable visitation, and requested child support.
The circuit court denied Mr. Payne’s motion to dismiss and granted Ms. France’s motion for contempt. In its order, the circuit court specifically found that it had personal jurisdiction over Mr. Payne:
Here, the Defendant has availed himself of the benefits and protections of Arkansas law by submitting to a paternity test in Arkansas where the child and the Plaintiff reside; by doing business in Arkansas, and by conferring with an attorney in Arkansas, reasonably anticipating being haled into an Arkansas Court for the determination of paternity, so that the exercise of personal jurisdiction by an Arkansas Court does not offend traditional notions of fair play and substantial justice. See Concrete Wallsystems of Ark., Inc. v. Master Paint Ind. Coating Corp.,_S.W.3d_, 2006 WL 720049 (Mar. 22, 2006 Ark. Ct. App.)
Four days later, Mr. Payne moved to dismiss Ms. France’s second amended and substituted petition for paternity. Fie claimed that Ms. France’s petition failed to state facts upon which relief could be granted, in that it failed to state facts upon which the circuit court could make a finding that it had jurisdiction over Mr. Payne’s person, and, therefore, the petition should be dismissed under Arkansas Rule of Civil Procedure 12(b)(6). He further asserted that the circuit court lacked jurisdiction over his person, and, therefore, the petition should be dismissed under Ark. R. Civ. P. 12(b)(2). Ms. France, in response, asserted that Mr. Payne’s motion should be denied “pursuant to this Court’s order filed September 18, 2006 that states this Court has jurisdiction as to the defendant.”
Ms. France then moved for summary judgment to establish paternity and child support. She asserted that, despite Mr. Payne’s lack of cooperation, she was able to determine his net income and that, during a deposition, Mr. Payne admitted that his take home pay was $120,000 per year. She averred that Mr. Payne had made no argument contesting the validity of the DNA testing for paternity and that the test results should be admitted into evidence as proof of paternity. Because, she urged, there were no issues of material fact, Ms. France requested the circuit court enter an order establishing paternity of T.J.F., naming Mr. Payne as the father of the child, awarding Ms. France custody of the minor child, and ordering Mr. Payne to pay child support based on his income of $120,000 per year. Mr. Payne responded, again asserting that the circuit court lacked jurisdiction over his person and that Ms. France had not established that she was entided to judgment as a matter of law.
As already stated, the circuit court granted Ms. France summary judgment, finding that it had jurisdiction, that venue was proper, and that the paternity of T.J.F. had been established by paternity testing. Further finding that Mr. Payne’s annual income was approximately $120,000, the circuit court ordered Mr. Payne to pay child support in the amount of$1500 monthly, retroactively to the date of the filing of Ms. France’s initial petition on March 23, 2006. Mr. Payne now appeals.
In essence, Mr. Payne asserts that the circuit court erred in granting Ms. France summary judgment because her pleadings, along with the affidavits and deposition on file, showed that the circuit court lacked personal jurisdiction over him. Ms. France responds that there is ample evidence to support the circuit court’s exercise of jurisdiction over Mr. Payne. The issue to be determined is whether the circuit court properly exercised personal jurisdiction over Mr. Payne.
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 93 (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.
Here, it is clear that Mr. Payne is not a resident of Arkansas. Under the Uniform Interstate Family Support Act (UIFSA), an Arkansas court may exercise personal jurisdiction over a nonresident individual under the provisions of Arkansas Code Annotated § 9-17-201 (Repl. 2008), which provides:
In a proceeding to establish, enforce, or modify a support order or to determine parentage, a tribunal of this state may exercise personal jurisdiction over a nonresident individual or the individual’s guardian or conservator if:
(1) the individual is personally served with summons within this state;
(2) the individual submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;
(3) the individual resided with the child in this state;
(4) the individual resided in this state and provided prenatal expenses or support for the child;
(5) the child resides in this state as a result of the acts or directives of the individual;
(6) the individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse;
(7) the individual asserted parentage in the Putative Father Registry maintained in this state by the Department of Health; or
(8) there is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction.
Ark. Code Ann. § 9-17-201. Our examination of the record reveals that none of the statute’s first seven bases apply; thus, subsection (8) requires us to examine Arkansas’s long-arm statute to determine whether the circuit court erred in exercising personal jurisdiction over Mr. Payne.
Arkansas’s long-arm statute, which sets forth the personal jurisdiction of Arkansas courts, is codified at Ark. Code Ann. § 16-4-101 (Repl. 1999) and provides, in pertinent part:
B. Personal Jurisdiction. The courts of this state shall have personal jurisdiction of all persons, and all causes of action or claims for relief, to the maximum extent permitted by the due process of law clause of the Fourteenth Amendment of the United States Constitution.
Ark. Code Ann. § 16-4-101 (B). In accordance with the statute, we look to Fourteenth Amendment due-process jurisprudence when deciding an issue of personal jurisdiction. See Davis v. St. John’s Health Sys., Inc., 348 Ark. 17, 71 S.W.3d 55 (2002).
As previously recognized by this court, the seminal case on personal jurisdiction and the Due Process Clause is International Shoe Co. v. Washington, 326 U.S. 310 (1945). See, e.g., Ganey v. Kawasaki Motors Corp., U.S.A., 366 Ark. 238, 234 S.W.3d 838 (2006). In International Shoe, the United States Supreme Court expanded the limits of state jurisdiction over nonresident defendants, while leaving in place basic notions of due-process limitations on that power. The Court in International Shoe looked to the nature of the contacts that the nonresident defendant had with the forum state, explaining that attention must be paid to the “quality and nature” of those contacts and also to whether or not that defendant through those contacts enjoyed the “benefits and protections” of the laws of the foreign state. 326 U.S. at 319. The Court further noted that there are situations in which a nonresident-defendant’s contacts with a forum state may be so substantial and continuous as to justify jurisdiction over that defendant, even though the cause of action is “entirely distinct from those activities.” Id. at 318. The touchstone principle announced by the Court in International Shoe was whether assumption of personal jurisdiction over the nonresident defendant was based on “minimum contacts” by the nonresident defendant in the forum state which does not offend “traditional notions of fair play and substantial justice.” Id. at 316.
Since International Shoe, the Supreme Court has revisited the personal-jurisdiction question, setting out further principles governing state-court jurisdiction. We discussed the expanded doctrine of personal jurisdiction in Davis v. St. John’s Health System, Inc., supra, and explained:
A nonresident defendant’s contacts with a forum state, for example, must be sufficient to cause the defendant to “reasonably anticipate being haled into court there.” Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). The Court has also identified two types of personal jurisdiction: general and specific. When a cause of action arises out of or is related to a defendant’s contacts with the forum state, the exercise of personal jurisdiction is one of specific jurisdiction. Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). However, if the exercise of jurisdiction arises in a case not stemming from the defendant’s contacts with the forum state, the exercise of personal jurisdiction is one of general jurisdiction. Burger King Corp. v. Rudzewicz, supra; Perkins v. Benguet Mining Co., 342 U.S. 437 (1952); International Shoe Co v. Washington, supra. When general jurisdiction is in question, a defendant may be subject to the forum state’s exercise of personal jurisdiction if contacts with the state are continuous, systematic, and substantial. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984).
348 Ark. at 23-24, 71 S.W.3d at 58-59. We have further held that the Eighth Circuit Court of Appeals’ five-factor test for determining minimum contacts was helpful in making such a determination. See id. (citing John Norell Arms, Inc. v Higgins, 332 Ark. 24, 962 S.W.2d 801 (1998)). Those five factors are: (1) the nature and quality of contacts with the forum state; (2) the quantity of such contacts; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) convenience of the parties. See id.
In the instant case, Ms. France’s complaints and the supporting affidavits and depositions alleged and demonstrated the following contacts between Mr. Payne and Arkansas: (1) that Mr. Payne agreed to voluntarily submit to a paternity test; and (2) that
the genetic testing was administered in Arkansas. Moreover, Mr. Payne’s own deposition testimony revealed that he drove from Ennis, Texas, to Little Rock to submit to the paternity test. While in Little Rock, he stopped, made a sales call to a Little Rock business, and went to the lab for the actual paternity test. He then went to lunch at a Little Rock restaurant with Ms. France, accompanied by his pastor who had come with him for the trip. We hold that these contacts were sufficient to satisfy the requirements of the Due Process Clause.
Mr. Payne agreed to a paternity test to be performed in Arkansas and voluntarily traveled to Arkansas to participate in the test. The paternity test resulted in a finding that Mr. Payne was T.J.F.’s father, and the instant paternity action resulted. Therefore, the instant paternity action arose out of or was related to Mr. Payne’s contacts with Arkansas. In addition, it is quite clear that a person submitting to a paternity test should foresee the possibility that a paternity suit and support action might be brought, depending on the results of the test. For these reasons, we hold that Mr. Payne’s travel to Arkansas and his participation in a paternity test within the state constituted sufficient minimum contacts with Arkansas, such that he could reasonably anticipate being haled into court here. We hold that the circuit court had specific personal jurisdiction over Mr. Payne.
We turn, then, to the second prong required for personal jurisdiction over Mr. Payne — that the Arkansas court’s exercise of jurisdiction over him would not offend traditional notions of fair play and substantial justice. Here, Mr. Payne has been and remains a resident of T exas, a state just to the southwest of and bordering Arkansas. He has already demonstrated that he is able to travel to Arkansas and back in the same day, as evidenced by his travel to Arkansas for the paternity testing. Thus, the burden of litigating this paternity and child-support action in Arkansas is in no way unreasonable. Furthermore, the State of Arkansas certainly has an interest in protecting its minor children and in ensuring the payment of child support on their behalf. Accordingly, we hold that the Arkansas court’s exercise of jurisdiction over Mr. Payne did not offend the traditional notions of fair play and substantial justice.
Because we hold that the circuit court’s exercise of personal jurisdiction over Mr. Payne was based on minimum contacts by him in Arkansas, which do not offend traditional notions of fair play and substantial justice, we hold that the circuit court did not err in granting summary judgment. Accordingly, we affirm.
Affirmed.
Imber, J., not participating.
Mr. Payne’s deposition testimony was submitted by Ms. France in support of her response to Mr. Payne’s motion to dismiss. | [
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Per Curiam.
Petitioner Johnny Paul Dodson moves this court to clarify the applicability of Ark. Sup. Ct. R. 5-2 (2007), and to extend the time for filing a brief to May 1, 2008. We accepted a certified question of law from the United States District Court for the Eastern District of Arkansas in Dodson v. Norris, 371 Ark. 661, 269 S.W.3d 350 (2007) (per curiam). The certified question involves whether a motion for belated appeal is a properly filed application for postconviction relief or other collateral review, and whether such motion is sufficient to toll the running of the one-year limitations period for filing federal habeas corpus petitions under 28 U.S.C. § 2254, even if it is eventually denied.
In his motion, Petitioner argues that Ark. Sup. Ct. R. 5-2(d) specifically prohibits the citation of unpublished opinions of the Arkansas Court of Appeals, and that no rule of this court prohibits citation of its own unpublished opinions. Petitioner further asserts that it will be necessary for him to cite unpublished opinions of this court because only four published opinions exist on the issues involved in his appeal.
We dealt extensively with the use of unpublished opinions in Weatherford v. State, 352 Ark. 324, 101 S.W.3d 227 (2003). In Weatherford, we said, “While Appellant may prefer those cases that are not published, there is nothing to indicate that Appellant is impaired in seeking immediate appellate relief by not being able to rely on those cases.” Id. at 332, 101 S.W.2d at 233. Such is the case here. Petitioner’s motion to clarify is denied. His motion to extend time for filing brief until May 1 is granted.
Request for clarification denied; motion to extend time granted. | [
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TOM GLAZE, Justice.
The court of appeals certified this appeal to our court in order to address the writ of certiorari that is sought by appellant Rodrick Chiodini. See Ark. Sup Ct. R. 1-2 (a) (3).
The underlying lawsuit in this case began when Chiodini filed a pro se complaint in the Stone County Circuit Court against appellee David Lock, alleging that Lock had trespassed on Chiodini’s property by building a fence that encroached on Chiodini’s land. Chiodini’s complaint was accompanied by a request for admissions and a set of interrogatories. Lock filed a timely answer on January 20, 2006. Lock also later provided his responses to Chiodini’s requests for admissions and interrogatories, but the responses were unsigned by either Lock or his attorney. Dissatis fled with Lock’s responses, Chiodini began to file repeated motions seeking “more responsive answers” to his discovery requests. Eventually, he asked the trial court to deem admitted his requests for admission; however, the circuit court denied his request.
Chiodini kept up his demands for answers to his discovery requests throughout 2006, complaining, among other things, that Lock’s responses were disorganized, unsigned, and untimely. In June of 2006, the circuit court held a hearing on Chiodini’s many motions and ultimately denied Chiodini’s request to have his requests for admission deemed admitted. In July 2006, the court rejected Chiodini’s motion for reconsideration of that ruling; the court further entered an order granting Lock’s request to prohibit Chiodini from seeking further discovery.
On August 2, 2006, Chiodini filed a “motion for an order prohibiting defendant’s entry on disputed land.” In this motion, Chiodini alleged that Lock had been entering the disputed property, and he asked the court to “issue an order (pendente-lite) [prohibiting [Lock] . . . from entering upon or performing any activity south of the fence line . . . that exists between defendant’s and plaintiffs property, without written consent from the plaintiff” Lock responded on August 10, 2006, generally denying the allegations in Chiodini’s motion and denying that Chiodini was entitled to relief
In September of 2006, Judge Tim Weaver, who had originally been assigned the case, recused, and Judge Stephen Choate subsequently acquired the case. On October 12, 2006, Chiodini filed a motion for rehearing of Judge Weaver’s decisions. After a hearing in May 2007, the court sent a letter opinion to the parties. In that letter, the court found that Judge Weaver had found that Lock’s answers to Chiodini’s requests for admission were not deficient, and that there was nothing there for the court to rule on. The court also found that Judge Weaver had “effectively dismiss [ed] Chiodini’s complaints concerning Lock’s answers to interrogatories. The court further noted that Judge Weaver had granted Lock’s motion for a protective order and prohibited any additional discovery. Next, the court stated that it “did not see the necessity to have hearings on the motions to prohibit [Lock’s] entry on the disputed land or for appointment of a neutral master. I believe a trial will cure these two motions. Therefore, both motions filed on August 2, 2006, are denied.”
On August 20, 2007, the trial court entered a series of orders reiterating the findings made in its letter. In the first, it specifically adopted Judge Weaver’s oral decisions from the bench regarding Chiodini’s June 20, 2006 and July 12, 2006 motions. The court noted that Judge Weaver had ruled on these motions from the bench, but had not reduced his findings to written orders because he recused from the case prior to doing so. The court also entered orders specifically denying Chiodini’s requests regarding Lock’s discovery responses, finding the responses were adequate and Chiodini’s motion to deem admitted would be denied. In addition, the court denied Chiodini’s motion for a hearing on his “motion for order prohibiting defendant’s entry on disputed lands.” Finally, the court rejected Chiodini’s request for a certification pursuant to Ark. R. Civ. P. 54(b), finding that such certification would be inappropriate.
Chiodini filed a notice of appeal on August 20, 2007. His notice declared his intent not only to appeal from the court’s refusal to hear his motion for a restraining order pendente-lite, but also to seek a writ of certiorari or prohibition due to the “abuse of discretion wherein the circuit court has exceeded its authority in law, thereby creating proceedings that are illegal.”
In his first point on appeal, Chiodini takes issue with the trial court’s denial of his request to hold a hearing on his August 2, 2006 “motion for an order prohibiting defendant’s entry on disputed land.” In his brief, he calls this motion a “motion for restraining order pendente-lite.” On appeal, he argues that it was “a clear error of law for the circuit court to refuse to even consider Chiodini’s motion and give him an opportunity to produce evidence to meet the required burden of proof for a preliminary injunction.” He goes on to assert that, if he were to prevail at trial, the court’s “affirmative act of refusing to grant [him] a hearing would be a denial of [his] present right to ask that the status quo be preserved, pending a judgment that would eventually be entered in his favor.” He asks this court to “reverse the circuit court’s ruling and authorize Chiodini to pursue his motion for injunctive relief.”
To the extent that Chiodini appeals from the trial court’s ruling that denied a hearing on his motion for injunctive relief, such an order is not appealable under Ark. R. App. P. — Civ. 2(a). Under Rule 2(a)(6), an appeal may only be taken from “[a]n interlocutory order by which an injunction is granted, continued, modified, refused, or dissolved, or by which an application to dissolve or modify an injunction is refused.” (Emphasis added.) An order denying a hearing, even on a motion for injunctive relief, is not appealable.
Moreover, even if we should consider Chiodini’s appeal to be from the denial of his request for injunctive relief, there is no merit to his claims. The issuance of a preliminary injunction is a matter addressed to the sound discretion of the trial court, and we will not reverse absent an abuse of that discretion. See Manila Sch. Dist. No. 15 v. Wagner, 356 Ark. 149, 148 S.W.3d 244 (2004); Custom Microsystems, Inc. v. Blake, 344 Ark. 536, 42 S.W.3d 453 (2001). In determining whether to issue a preliminary injunction, two factors must be considered: (1) whether irreparable harm will result in the absence of an injunction, and (2) whether the moving party has demonstrated a likelihood of success on the merits. Wagner, supra.
Nowhere in his motion before the trial court did Chiodini address either of these two prerequisites to obtaining injunctive relief. In addition, Chiodini’s brief before this court makes no mention of either factor, nor does he cite any authority in support of his argument that the trial court should have granted his request for a restraining order. This court has repeatedly held that it will not consider assertions of error that are unsupported by convincing legal authority or argument, unless it is apparent without further research that the argument is well taken. See Hanks v. Sneed, 366 Ark. 371, 235 S.W.3d 883 (2006); Pilcher v. Suttle Equip. Co., 365 Ark. 1, 223 S.W.3d 789 (2006).
Moreover, this court has never wavered in its requirement that the movant for a preliminary injunction prove that there is a likelihood that the movant will succeed on the merits. See Custom Microsystems v. Blake, supra. Because Chiodini has not even so much as suggested — either below or in this court — that he will likely prevail upon the merits, it simply cannot be said that the circuit court abused its discretion in denying his request for injunctive relief.
In his second point, Chiodini “claims by writ of certiorari that the trial court substantially misapplied law and rule” when it interpreted Ark. R. Civ. P. 36 in ruling on his discovery requests. A writ of certiorari is appropriate when, on the face of the record, it is apparent that no other remedy is available to correct a plain, manifest, and gross abuse of discretion by the trial judge. See, e.g., Ark. Dep’t of Human Servs. v. Circuit Court of Sebastian County, 363 Ark. 389, 214 S.W.3d 856 (2005); Lackey v. Bramblett, 355 Ark. 414, 139 S.W.3d 467 (2003). This court has specifically stated that “a writ of certiorari is extraordinary relief, and we will grant it only when there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record.” Ark. Dep’t of Human Servs. v. Collier, 351 Ark. 506, 516, 95 S.W.3d 772, 777 (2003).
In addition, this court has recognized that certiorari is not an appropriate remedy to use to reverse a trial court’s discretionary authority. Collier, supra; see also Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 766 (1992). Certiorari is appropriate where a party claims that a lower court did not have jurisdiction to hear a claim. Kraemer v. Patterson, 342 Ark. 481, 29 S.W.3d 684 (2000) (emphasis added).
Our court has clearly held that a discovery order is not the proper subject for an extraordinary writ because the trial court’s jurisdiction allows it to decide such discovery issues. See Ford Motor Co. v. Harper, 353 Ark. 328, 107 S.W.3d 168 (2003) (Glaze, J„ concurring) (citing Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1993)). In Ballard v. Martin, 349 Ark. 54, 79 S.W.3d 838 (2002), this court noted that a trial court has broad discretion in matters pertaining to discovery, and the exercise of that discretion will not be reversed by this court absent an abuse of discretion that is prejudicial to the appealing party.
A writ of certiorari is extraordinary relief. In determining its application we will not look beyond the face of the record to ascertain the actual merits of a controversy, or to control discretion, or to review a finding of fact, or to reverse a trial court’s discretionary authority, Jordan v. Circuit Court of Lee County, 366 Ark. 326, 235 S.W.3d 487 (2006) (emphasis added). Because a trial court’s discovery ruling is a matter well within the court’s jurisdiction and discretion, a writ of certiorari will not lie to correct any perceived error in the court’s ruling.
The cases cited by Chiodini deal only with this court’s interpretation of the discovery rules. He offers no authority that would support his claim that a writ of certiorari is in any way the appropriate remedy for the trial court’s alleged errors. This court has further held that discovery matters are not amenable to interlocutory review. See Ark. Democrat-Gazette, Inc. v. Brantley, 359 Ark. 75, 194 S.W.3d 748 (2004); Ford Motor Co. v. Harper, supra; Farm Service Co-Op of Fayetteville v. Cummings, 262 Ark. 810, 561 S.W.2d 317 (1978). Although Chiodini concedes that discovery issues are not subject to appeal, he nonetheless suggests that this is “not a typical interlocutory discovery issue.” Instead, he argues, the trial court’s “clear misapplication of law and rule appear to be a consistent, broad-based, systemic threshold policy of the Sixteenth Judicial Circuit when considering application of Rule 36 to all cases within that Circuit.” However, he still cites no authority that would compel a conclusion that a writ of certiorari would be an appropriate remedy in these circumstances. Accordingly, we reject his contentions.
In his final point, Chiodini asks this court to “correct a wholesale catalogue of gross abuses of discretion and legal error . . . that, if not now addressed, will inevitably require an appeal,” and he contends that certiorari should be granted to address a litany of complaints. For example, he contends that it was “error and an abuse of discretion” for the trial court to: 1) rule that Lock’s non-compliance with Rule 34 was moot; 2) refuse to deem admitted Lock’s response to Chiodini’s first request for admissions; 3) rule that an unsigned, and undated, response to Chiodini’s first request for admissions was timely, or that there existed excusable neglect for filing a late response; 4) rely on a non-existent prior bench decision as sole authority for his decision; 5) rule that Lock was not required to verify his answers to interrogatories; 6) rule that Lock’s responses to Chiodini’s second interrogatories were complete, and in compliance with the rule; 7) adopt a previous court’s bench decisions and enter those decisions as orders; and 8) sanction Chiodini by prohibiting further discovery.
Again, certiorari is clearly not the appropriate remedy to address these concerns. As Chiodini recognizes, each of these issues could be appealed. Certiorari will only lie when there is no other adequate remedy, such as an appeal, available. See, e.g., Ark. Game & Fish Comm’n v. Herndon, 365 Ark. 180, 226 S.W.3d 776 (2006). In addition, as discussed above, discovery issues are matters in which the trial court is vested with discretion, and certiorari will not lie to control a trial court’s discretion. See Jordan v. Circuit Court of Lee County, supra. Accordingly, we conclude that Chiodini’s petition for writ of certiorari is without merit, and the writ is therefore denied.
Chiodini does cite Comer v. Woods, 210 Ark. 351, 195 S.W.2d 542 (1946),but he does so only for the proposition that the purpose of an injunction is to afford preventive relief and to maintain the status quo. | [
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Per Curiam.
Appellant, Richard Brown, by and through his attorney, David O. Bowden, moves this court to file a belated brief. After a final extension, Brown’s brief was due on April 23, 2008. On April 22, 2008, Brown timely filed a motion to extend the time in which to file his brief, which we denied on April 23,2008. He then submitted a motion to file a belated brief on April 28, 2008. On May 7, 2008, Brown tendered his brief to this court’s clerk, at which time he also filed an amended and supplemented copy of his motion to file a belated brief.
We will accept a criminal appellant’s belated brief to prevent an appeal from being aborted. Wertz v. State, 373 Ark. 260, 284 S.W.3d 481 (2008) (citing Stewart v. State, 319 Ark. 242, 889 S.W.2d 771 (1995)). However, good cause must be shown to grant the motion. Id. (citing Strom v. State, 356 Ark. 224, 147 S.W.3d 689 (2004) (per curiam) (holding that appellate counsel’s admitted failure to timely file the brief constituted good cause to grant motion for belated brief)).
Here, Mr. Bowden states in the motion that his client, Richard Brown, was convicted of first degree murder and sentenced to a term of imprisonment for life. Furthermore, Mr. Bowden acknowledges his own fault in failing to timely file his brief. In line with current precedent, this court grants Brown’s motion to file belated brief, and we refer the matter to the Committee on Professional Conduct.
Motion granted. | [
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Smith, J.
This is a suit by appellant Duclos to enforce the specific performance of a contract to sell him a farm in Mississippi county. The contract was executed upon a form prescribed by the Federal Department of Agriculture, designated as F. S. A.-LE-188B. It appears to be, in substance, the same form of contract involved in the case of Killingsworth v. Tatum, 203 Ark. 354, 157 S. W. 2d 30, and its purpose was to enable persons who met the Government’s requirements to borrow money from the Government with which to purchase farm lands to be used as a home by the purchaser.
The relevant portions of the contract are as follows. In consideration of $1, in hand paid, the owner of the land proposed to be purchased “agrees to sell and convey to A. O. Duclos or such other person as may be designated in his stead by the Regional Director of the Farm Security Administration of the United States Department of Agriculture for the region in which the land hereinafter described is located (hereinafter called the ‘Buyer’), and hereby grants to the said Buyer the exclusive and irrevocable option and right to purchase, under the conditions hereinafter provided, the following described lands, (a description of which follows) ...”
It was agreed that an unencumbered title should be conveyed, and that ‘ ‘ This option is given to enable the buyer to obtain a loan from the United States acting by and through the Secretary of Agriculture (hereinafter called the ‘Government’), pursuant to Title 1 of the Bankhead-Jones Farm Tenant Act (7 U.S.C.A., § 1000 et seq.), for the purchase of said lands. The purchase price of said lands is the sum of $15,137 for the tract as a whole.”
The seller agreed to furnish a title insurance policy in favor of the Government in the amount of the pur chase price of the land, and to furnish an abstract of title and continuations thereof were required. The seller agrees that all taxes or other liens shall he satisfied, including expenses incident to execution of deed. If the title insurance policy is not furnished within a reasonable time, the buyer is given the right to procure the insurance and to deduct the cost thereof from the purchase price. The seller agrees to convey to buyer by a general warranty deed a valid unencumbered, indefeasible fee simple title.-
It was further provided that taxes- and all general or special assessments “for the year in which the closing of title takes place, shall be prorated as of the date of the closing of title, it being expressly agreed that for the purpose of such proration the tax year shall he deemed to be the calendar year. . . Taxes on property due in 1941 will be paid by the party receiving rents from the 1941 crop. Buyer is to receive the rents if the vendor is paid before July 1. If payment is not made before July 1, then vendor will receive rents and pay buyer 3% interest on the option price from date payment is made until January 1. . . . This option may be exercised by the Buyer by mailing or telegraphing a notice of acceptance of the offer herein to Mrs. Tera F. Turner in the city of Blytheville, RFD No. 2, State of Arkansas, at any time while the offer herein shall remain in force.
“The offer herein shall he irrevocable for a period of 4y2 months from date hereof, and shall remain in force thereafer until terminated by the Seller, ... , at any time after the expiration of such period by the giving of ten days’ written notice to the Buyer of such termination. ’ ’
This writing was signed by Mrs. Turner, and was dated January 14,1941, and following her signature there was written an acknowledgment of the payment to her of the sum of $1; but Mrs. Turner denied that this was paid her.
The complaint praying the specific performance of this contract was dismissed as being without equity, and this appeal is from that decree.
The chancellor prepared a written opinion upon rendering this decree, which recited the reasons therefor. The court distinguished the contract here sued on from the one involved in the case of Killingsworth v. Tatum, supra, the distinction being that the opinion in that case recited that the option there involved was executed for a valuable consideration, whereas the consideration here is merely nominal. Upon this view the court below held that “such a contract may be revoked by the maker at any time before acceptance by giving the vendee in the contract notice of revocation.” This holding was made upon the authority of the opinion in the case of Hogan v. Richardson, 166 Ark. 381, 266 S. W. 299, in which case it was sought to enforce an option to purchase an interest in certain oil and mineral lands under a contract which recited the-consideration to be the sum of $1 in hand paid. It was there .held (to quote a headnote) that “An option for the sale of land for a nominal consideration may be withdrawn at any time before acceptance, on notice to the vendee, but, where a valuable consideration is paid for an option, it cannot be withdrawn by the vendor be-' fore expiration of the time specified therein. ’ ’
The contract here sought to be enforced recites that it was executed upon a consideration of $1 in hand paid, and if there were no other consideration the rule above quoted would apply. ¥e think, however, that it appears from the recitals of the contract, above quoted, that there were other considerations moving the parties to the contract. Duelos assumed the obligation recited, which suffices to constitute a valid consideration.
It was known to the parties to this contract that Mrs. Turner had given a mortgage on the land to an insurance company, to be repaid over a period of years, and that she proposed to discharge this indebtedness with a part of the purchase money she was to receive; but the insurance company declined to accept prepayment of this debt for the full amount thereof with accrued interest.
It is undisputed that Mrs. Turner advised Duclos and the FSA Director that she could not sell the laud unless an arrangement could be made to pay off this mortgage indebtedness; and it is also undisputed that she advised them that if the mortgage indebtedness could not be discharged nothing further would be done in the matter.
It developed that the FSA Director had assumed an obligation on the part of the Government to make a loan which he was not authorized to make, as he was not authorized to make a loan of more than $5,400' to any one person. Duelos sought to obviate this difficulty by an arrangement for two other persons possessing the qualifications required by the Government to borrow money for this purpose; this arrangement was that each of the three persons should buy a one-third interest.
There was, therefore, a binding contract to convey between Mrs. Turner and Duelos, but it appears that they had entered into a contract impossible of performance on the part of Duelos. It was impossible of performance for the reason that the whole matter was contingent and dependent upon Duelos borrowing from the Government the sum of $15,137 to pay “for the tract of land as a whole. ’ ’ The sale of the entire tract of land was contemplated, and not divisible parts of it. Duelos admitted that he had no means of his own with which to buy the land, and that his ability to comply depended entirely upon making a loan from the Government, and this the Government could not and would not do, because no loan for this purpose could be made in excess of $5,400.
Now, it is true that Duelos produced two other persons who desired to join him in this purchase who were eligible under the Government regulations to borrow the maximum sum of $5,400 each, and that he and those other two could borrow a sum in excess of the amount Mrs. Turner agreed to take. But because Duelos had a valid contract, based upon a sufficient consideration, to buy the land, it does not follow that Mrs. Turner was required to divide this land and sell it in parts. She had no contractual relation with Duelos ’ associates, and had received no consideration of any kind from them, or either of them. One of the parties who had been invited by Duelos to join in the purchase of the land testified that he and Duelos called on Mrs. Turner and advised her of their arrangement ; but he admitted that she declined to proceed under that arrangement.
Now, the option contract does provide that Mrs. Turner “offers and agrees to sell and convey to A. C. Duelos or such other person as may be designated in his stead by the Regional Director of the Farm Security Administration of the United States Department of Agriculture. ’ ’ But if this provision can be said to be valid as contemplating that the substituted purchaser would assume the same obligations imposed upon Duclos, yet, if this be assumed, as much as can be said of this provision of the contract is that it authorizes the substitution of another purchaser for Duclos who would pay the lump sum of $15,137 for the property; and no one proposes to do this.
It is easily conceivable that, if permitted, Duclos would consummate the purchase for himself of a third of this farm, and that one or the other of his associates might also purchase another third, whereas the other party might not consummate his purchase, in which event Mrs. Turner would have sold, not all of her farm, as she contracted to do, but only a part thereof.
The opinion of the court contains a finding, which the testimony not only supports, but which appears to be undisputed, “that the purported acceptance (the written acceptance) was not delivered to the defendant until June 10, 1941, which was more than 4y2 months after the execution of the contract. It is contended that under the terms of the contract it was to continue in force until written notice was given plaintiff of its revocation. The contract contains such a condition, but I can not conceive that the condition is of greater force or effect than the offer contained in the option.”
The opinion in the case of Bracy v. Miller, 169 Arle. 1115, 278 S. W. 41, reviews the question of mutuality of obligation as a condition upon which the right to enforce specific performance depends, and the rule is stated that there must be mutuality both as to the obligation and the remedy before this relief will be awarded; and it was specifically held in the case of El Dorado Ice & Planing Mill Co. v. Kinard, 96 Ark. 184, 131 S. W. 460, (to quote a'headnote) that “A contract which leaves it entirely optional with one of the parties as to whether or not he will perform his promise is not binding upon the other.”
Here, not within 4% months, nor at all, at any time, has either of Duelos’ associates obligated himself to do anything, and Mrs. Turner has no right which she could enforce against either of them. It must, therefore, follow that they have no right against Mrs. Turner which Duelos can enforce for their benefit.
The decree must, therefore, be affirmed, and it is so ordered. | [
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Smith, J.
This suit was brought by Halbrook to enjoin Lewis and Lewis’ employees from cutting and removing the timber from a 40-acre tract of land in Van Burén county. The conqplaint was dismissed as being without equity, and from that decree is this appeal.
Prior to 1921, the land was owned by C. E. Reed, who failed to pay the 1921 general taxes due thereon, and the land was sold and forfeited to the state June 6,1922. This sale was duty certified to the State Land Commissioner June 6, 1924, and on July 2, 1934, a. decree was rendered confirming the state’s title under this tax forfeiture.
Lewis sought to buy the land, and was advised by the clerk of Van Burén county that C. E. Reed was the last record owner, and that the land had forfeited to the state as being assessed to Reed. Lewis applied to the State Land Commissioner to purchase the land, but was advised by that official that the land was situated in the Federal Forest Reserve, northwest Arkansas, and might be redeemed from the state, but could not be sold by the state, whereupon Lewis obtained a quitclaim deed from Reed, and upon presentation of this deed to the land commissioner he obtained from that official a redemption deed. Thereafter Lewis began cutting the timber on the land, and this suit was brought by Halbrook to enjoin hipa from doing so. The deed from Reed to Lewis was filed for record December 12,1940.
Appellant Halbrook deraigns title as follows: A deed to him from Gr. E. Ring, filed for record May 22, 1941. A deed from Z. O. Ring to Gr. E. Ring, filed for record May 22, 1941. A deed from C. E. Reed to Z. O. Ring, filed for record May 22, 1941. The deed from Reed to Ring was dated November 3, 1923, but, as appears from the facts above stated, was not filed for record until after the deed from Reed to Lewis had been filed for record. The land was wild and unoccupied, and no one paid taxes thereon after its sale to the state in 1922 until Lewis purchased from_Reed.
It appears that the state conceded the right of Reed and his grantee to redeem the land, and upon the assumption that Lewis was that person a redemption deed was executed to him by the State Land Commissioner. This deed recites the conveyance of “all right, title and interest of the state, as authorized by. 1009G to 10104, C. & M. Digest. ”
•Appellant Halbrook contends that he — and not Lewis —had the right to obtain this deed from the state, the basis of the contention being that prior to the execution of the deed from Reed to Lewis, Reed had conveyed the land to Halbrook’s predecessor in title.
It further appears, from the facts above stated, that the first deed filed for record conveying Reed’s title was the deed from Reed to Lewis, although Reed had previously conveyed his title to Halbrook’s predecessor in title.
Section 1847, Pope’s Digest, reads, in part, as follows: “Effect of deed — necessity of record. No deed, bond, or instrument of writing, for the conveyance of any real estate, or by which the title thereto may be affected in law or equity, hereafter made or executed, shall be good or valid against a subsequent purchaser of such real estate for a valuable consideration, without actual notice thereof: . . . unless such deed, bond, or instrument, duly executed and acknowledged, or approved, as is or may be required by law, shall be filed for record in the office of the clerk' and ex-offioio recorder of the county where such real estate may be situated.”
This statute is unlike the statute relating to mortgage liens {% 9435, Pope’s Digest), which reads as follows: “When lien attaches. Every mortgage, whether for real or personal property, shall be a lien on the mortgaged property from the time the same is filed in the recorder’s office for record, and not before; which filing shall be notice to all persons of the existence of such mortgage.”
It has been uniformly and frequently held that, under the statute last quoted, the lien of a mortgage does not attach until the mortgage has been filed for record; but a deed is effective to convey title upon its delivery to the grantee, whether recorded or not, and is good and valid against a subsequent purchaser for a valuable consideration who has actual notice thereof, although not recorded. In other words, a subsequent purchaser who places his deed of record may, and does acquire a title superior to a prior purchaser -who does not file his deed for record until after the subsequent purchaser has filed his deed for record, provided the subsequent purchase was for a valuable consideration and made without actual notice of the prior conveyance. Long v. Langsdale, 56 Ark. 239, 19 S. W. 603; Kendall v. J. I. Porter Lbr. Co., 69 Ark. 442, 64 S. W. 220; Bogenschultz v. O’Toole, 70 Ark. 253, 67 S. W. 400; Penrose v. Doherty, 70 Ark. 256, 67 S. W. 398; Bell v. South Ark. Land Co., 129 Ark. 305, 196 S. W. 117; Tisdale v. Gunter, 194 Ark. 930, 109 S. W. 2d 1267; Sturgis v. Nunn, 203 Ark. 693, 158 S. W. 2d 673.
The parties claim from a .common grantor, and the deed to Lewis was first filed for record. It is conceded that Lewis paid a valuable consideration for his deed, but it is denied that he purchased without actual notice of .the earlier deed. The decision of this case depends, therefore, upon the question whether Lewis purchased without actual notice of the deed from Peed to Halbrook’s predecessor in title.
To sustain the contention that Lewis was not an innocent purchaser, Reed, his grantor, was called and gave testimony as follows: “Q. Will you kindly state to the court the statement made to you by Mr. Lewis at the time he procured this deed? A. Well, he came over and told me that there was forty acres of land that went back to the state in my name and he wanted to get a quitclaim deed or fix it in a way he could redeem it. And I told him I did not remember what disposal I had made of this forty — that I had let different tracts of land go back for taxes along that time and after he gave me the check I got to studying about it and returned the check to him as I could not get into my mind what disposal I made of the land. He came back in a day or two and assured me that it was legal and right for me to give him a quitclaim deed. I told him I did not know if I had any interest because I just could not recall what I had done with that and he reassured me there would be no litigation about it. He told me the clerk recommended that was legal and he got a statement from the clerk the next day that it was legal and in my rights. The land went back to the state in my name. Q. After that you executed a quitclaim deed to him? A. Yes, sir.”
In the opinion of the chancellor, this testimony was insufficient to. show that Lewis had actual notice of the prior deed executed by Reed, and as that finding is not contrary to the preponderance of the evidence the decree, based on that finding, is affirmed. | [
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Smith, J.
Appellant, Cole Yonng, as administrator of the estate of Thomas E. Young, brought this suit to recover damages for the alleged negligent killing of his intestate against defendants in whose service the intestate was employed at the time of his death. It was alleged that on December 10, 1940, intestate was run over by a truck driven by- another employee of defendants, the circumstances of which are detailed and are alleged to constitute actionable negligence.
A motion to dismiss the complaint was filed, which averred that the provisions of § 9130, Pope’s Digest, pursuant to which the suit was brought, were inapplicable, for the reason that Act 3191 of the Acts of 1939, p. 777, known as the Workmen’s Compensation Law, was in effect on December 10, 1940, and that defendants had fully complied with the provisions of said act, so as to bring plaintiff’s intestate under the exclusive remedies contained in said act, and it was, therefore, alleged that the Arkansas Workmen’s Compensation Commission had sole jurisdiction to hear and determine any question relative to the payment of money benefits arising from the death of the intestate.-
A response to this motion was filed, which alleged that defendants were not, on December 10, 1940, subject to nor protected by the Workmen’s Compensation Law, for the reasons: (1) defendants were engaged in performing labor and doing work within the confines of a United States military post; (2) defendants were foreign corporations and not authorized to transact business in Arkansas, and were not subject to the Arkansas Workmen’s Compensation Law, and had not complied with the provisions of §§ 7 and 8 of that act; (3) defendants had not secured the payment of compensation as required by the provisions of the compensation act or posted or given the notice required by law that they had done so; (4) that the policy of compensation insurance had not been properly approved; (5) the law is unconstitutional and void, in that, pursuant to the provisions of § 25 thereof, it deprives the claimant of his right to a trial of facts by a jury, contrary to the provisions of § 7 of art. 2 of the Constitution of Arkansas, and of art. 7 of the Amendments to the Constitution of the United States.
Interrogatories were attached to this response requiring defendants to answer in what manner they had complied with the provisions of the act, thereby bringing themselves within its protection.
A verified answer was filed in response to these interrogatories, the truth of which was not questioned, showing full and proper compliance with the act.
The motion to dismiss was overruled, whereupon defendants filed an answer, in which, after reserving their prayer that the cause of action be dismissed, all the material allegations of the complaint in regard to negligence were denied, and it was alleged that the intestate’s death was due solely to his own negligence. The case proceeded to a trial. At the conclusion of the introduction of the testimony the court charged the jury as follows: “Ladies and gentlemen of the .jury, the plaintiff having rested on the question of liability, the defendant has moved for an instructed verdict, which motion is by the court granted. The court feels in this case that under the most favorable testimony, and giving all the weight and credit to the testimony the court in its discretion can give to the testimony of the witnesses for the plaintiff, the plaintiff has not made out a case of negligence. The testimony might show that the truck driver in this case may have violated some regulation they had with reference to starting of trucks without the employees on them. Here the testimony is undisputed the employee had gone on some sort of errand and came out and saw the truck moving and attempted to climb onto the truck while it was moving and fell under it and was killed. The court rules as a matter of law that under the testimony there is nothing for the jury to determine because his negligence was the proximate cause of his injury and the sole cause of his injury and death and for those reasons the court directs you to return this verdict: ‘We, the jury, under direction of the court, find for the defendants.’ ”
Judgment for. defendants was pronounced upon the verdict returned under this direction of the court, and from that judgment is this appeal.
It was shown in the testimony that intestate’s employer was engaged in construction work at Camp Robinson, a United States military post; but that fact does not render the provisions of the act inapplicable. Section 290, Title 40, USCA, reads as follows: “Section 290. State workmen’s compensation laws; extension to buildings and works of United States.
“Whatsoever constituted authority of each of the several states is charged with the enforcement of and requiring compliance with the state workmen’s compensation laws of said states and with the enforcement of and requiring compliance with the orders, decisions, and awards of said constituted authority of said states shall have the power and authority to apply such laws to all lands and premises owned or held by the United States of America by deed or act of cession, by purchase or otherwise, which is within the exterior boundaries of any state, and to all projects, buildings, constructions, improvements and property belonging to the United States of America, which is within the exterior boundaries of any state, in the same way and to the same extent as if said premises were under the exclusive jurisdiction of the state within whose exterior boundaries such place may be.
“For the purposes set out in this section, the United States of America hereby vests in the several states within whose exterior boundaries such place may be, in so far as the enforcement of state workmen’s compensation laws are affected, the right, power and authority aforesaid; provided, however, that by the passage of this section the United States of America in nowise relinquishes its jurisdiction for any purpose over the property named, with the exception of extending to the several states within whose exterior boundaries such place may be only the powers above enumerated relating to the enforcement of their state workmen’s compensation laws as herein designated; provided further, that nothing in this section shall be construed to modify or amend §§ 751 to 796 of Title 5. June 25, 1936, c. 822, 1, 2, 49 Stat. 1938, 1939.”
The laws of this state relative to the domestication of foreign corporations have no application, for the reason that appellees were eng*aged in construction work for the United States at a military post under the .jurisdiction of the United States. In the case of Surplus Trading Co. v. Cook, 281 U. S. 647, 50 S. Ct. 455, 74 L. Ed. 1091, it was held, in reversing the opinion of this court reported in Haynie v. Surplus Trading Company, 174 Ark. 507, 297 S. W. 822, that (to quote a lieadnote) “Under art. 1, § 8, cl. 17, 'of the Constitution, land purchased by the United States for an army station, with the consent of the legislature of the state in which it lies, comes under the exclusive jurisdiction of the United States, and private personal property there situate can not be taxed by the state.” The camp there called Camp Pike is now called Camp Robinson.
Section 4 of Act 319, supra, provides that “The rights and remedies herein granted to an employee subject to the provisions of this act, on account of personal injury or death, shall be exclusive of all other rights and remedies of such employee, his legal representatives, dependents, or next of kin, or anyone otherwise entitled to recover damages from such employer on account of such injury or death, except that if an employer fails to secure the payment of compensation as required by the act, an injured employee, or his legal representative, in case death results from the injury, may, at his option, elect to claim compensation under this act or to maintain an action in the courts for damages on account of such injury or death. . .
As has been said, the employers had not failed “to secure the payment of compensation as required by the act,” and the remedies provided by it are, therefore, exclusive, and the motion to dismiss the complaint should have been sustained.
That legislation similar to our Act 319 is not violative of the Federal Constitution is definitely settled by the opinion of the Supreme Court of the United States in the case of Mountain Timber Co. v. State of Washington, 243 U. S. 219, 37 S. Ct. 260, 61 L. Ed. 685, Ann. Cas. 1917D, 642. Nor does Act 319 violate our own Constitution, for full authority for its enactment was given by Amendment No. 26 to the Constitution, adopted at the 1938 general election. This amendment reads as follows: “The General Assembly shall have power to enact laws prescribing the amount of compensation to be paid by employers for injuries to or death of employees, and to whom said payment shall be made. It shall have power to provide the means, methods, and forum for adjudicating claims arising under said laws, and for securing- payment of same. Provided, that otherwise no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property; and in case of death from such injuries the right of action shall survive, and the General Assembly shall prescribe for whose benefit such action shall be prosecuted.”
This amendment confers upon the General Assembly the power to enact legislation prescribing the amount of compensation to be paid employees for injury or death, and to whom such payments shall be made. It confers power to prescribe the means, methods and forum for the adjudication of such claims, and for securing the payment thereof. It was pursuant to this amendment, and under the authority there conferred, that Act 319 was passed and became a law. The amendment provides that otherwise, that is, except in cases arising between employer and employee, no law shall be passed limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property. The effect of this amendment is to amend both § 7 of art. 2 and § 32 of art. 5 of the 'Constitution in the respects indicated.
It appears that every state in the Union, save only the state of Mississippi, now has legislation more or less similar to our Act 319, all of which have the same general purpose, and that such legislation has been uniformly upheld. The legislation has been attacked upon almost every ground which the ingenuity of learned counsel could conceive. At § 14, p. 64, vol. 1, Honnold on Work men’s Compensation, it is said: “Every conceivable constitutional objection has been made to the various acts. They have been quite uniformly upheld as against general objections that they are unconstitutional, and as against the objections that they are class legislation and make unreasonable classifications, deny equal protection and due process of law, impair the obligation of existing contracts, though applying to such contracts, and interfere with the right to contract, the right to jury trial, and vested rights by abolishing existing statutory and common-law remedies, and that they abridge privileges and immunities.”
Many cases from various states are cited in support of the text quoted, but it would be a work of supererogation to review them.* Nearly all the states have constitutional provisions similar to, and, in some states, identical with, our constitution in regard to trial by jury.
The case of Hunter v. Colfax Consolidated Coal Co., decided by the Supreme Court of Iowa, November 24, 1915, 175 Iowa 245, 154 N. W. 1037, 1917E, Ann. Cas. 803, L. R. A. 1917D, 15, is one which has been cited and approved by many courts, and contains an exhaustive discussion of the subject.
In vol. 1 (Permanent Edition) Schneider’s Workmen’s Compensation Text (§§ 27 to 76) appears a summary of the holdings of all the states, arranged alphabetically from Alabama to Wyoming, on the constitutionality of such legislation. Mississippi, which has no such law, was not included, nor was this state, as our own law had not been passed upon by this court when the text was written.
Alaska was one of the few jurisdictions in which such legislation was held invalid for any reason, and the legislation of that territory was held invalid for the reason that it required employers to make payments to the territory for the benefit of aged residents, and this was held a tax rather than compensation.
Generally, this legislation was upheld as a valid exercise of the state’s police power, and the reasoning of many of these cases is similar to that of the Supreme Court of Illinois in the case of Grand Trunk Western Ry. Co. v. Industrial Commission, 291 Ill. 167, 125 N. E. 748, where it was said: ‘ ‘ The act here in question takes away the cause of action on the one hand and the ground of defense on the other and merges both in a statutory indemnity fixed and certain. If the power to do away with a cause of action in any case exists at all in the exercise of the police power of the state, then the right of trial by jury is therefore no longer involved in such cases. The right of jury trial being incidental to the right of action, to destroy the latter is to leave the former nothing upon which to operate.”
The major part of Yol. 71, Corpus Juris, is devoted to the chapter on Workmen’s Compensation Acts, where an indefinite number of cases are cited.
Our own case of McKinley, Commissioner of Labor, v. R. L. Payne & Son Lbr. Co., 200 Ark. 1114, 143 S. W. 2d 38, upholding our Unemployment Compensation Act (§§ 8549 to 8569, Pope’s Digest) as constitutional, while not directly in point, is not wholly inapplicable.
We conclude, therefore, that the motion to dismiss the cause should have been sustained, as the exclusive jurisdiction was vested in the Workmen’s Compensation Commission, whose findings are subject to the review provided by § 25 of the act, and the judgment of the court below will, therefore, be reversed, and the cause remanded with directions to sustain the motion to dismiss and to abate the suit. | [
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Grieein Smith, C. J.
The action was to compensate personal injuries sustained by appellee, a Siegel employe. A stationary block with blade formed one of two surfaces to which scrap metal was fed. Cutting occurred when a second blade, power-driven and operating scissors-like, contacted the object intended to be reduced. Brittle particles were frequently broken from metal. These would sometimes be projected with considerable force in an uncontrolled manner.
While “feeding” the machine May 21, 1940, a steel sliver struck appellee, entering the right forearm and inflicting permanent injury. Of sixteen errors alleged in the motion for a new trial, six are urged: (1) Appellant assumed the risk. (2) Judgment non\ obstamie veredicto should have been rendered. (3) Instruction No! 1 omits the defense of assumed risk, and (4) is otherwise erroneous, as (5) is also plaintiff’s instruction No. 8. (6) Defendant’s instruction No.'8 should have been given.
The day of injury both cutting edges of the machine were dull. Appellee alleged this caused particles to break from the metal. When blades were sharp, slivers would seldom be impelled unless hard steel was cut.
The morning of May 21 appellee asked Cooper Harris, his foreman, to change blades, explaining that those in use were dull, and he was afraid to use them in that condition. Harris said time was not then available. He directed appellee to finish cutting a certain quantity of steel, and promised, thereafter, to make substitutions. Appellee testified he relied on the promise, but was injured during the afternoon while cutting a bumper that came from a very old automobile. At the hospital a general anaesthetic was administered and the sliver removed. Part of the flesh sloughed off. A physician testified that while appellee still had partial use of the arm, amputation would probably be necessary. The judgment for $10,000 is not alleged to be excessive.
The foreman denied having promised to replace blades, but admitted appellee complained of their condition the morning of May 21. Sharp blades, he said, “sliver” certain kinds of metal, and particles are apt to strike an operator at any time.
First. — It is insisted that because appellee was 47 years of age, and had been using the machine several years, his information regarding it, and knowledge of attendant dangers, were equal to information and knowledge of the foreman. Appellee’s statement that slivers from hard steel were sometimes thrown from sharp blades is, it is argued, an admission that the danger was obvious; therefore, a promise to repair and failure to do so were not proximate causes of injury; and this, it is said, is certainly true in view of appellee’s testimony that hard steel of the kind he was converting “would shatter like a piece of glass.”
An experienced employe assumes all ordinary risks incident to his employment. McEachin v. Yarborough, 189 Ark. 434, 74 S. W. 2d 228; Southwestern Telephone Company v. Woughter, 56 Ark. 206, 19 S. W. 575. The McEachin decision is cited by appellant, and its rule is sought to be invoked. Distinction is that a promise on behalf of McEachin to repair was not involved, while here appellee says he relied absolutely upon the foreman’s assurance. In this respect the case is dissimilar to M. E. Gillioz, Inc. v. Lancaster, 195 Ark. 688, 113 S. W. 2d 709. It is more like Texarkana Telephone Company v. Pemberton, 86 Ark. 329, 111 S. W. 257, where we said that when a master has promised to repair, the employe does not assume interim risks if the period is reasonable and circumstances do not preclude normal expectation the promise will be kept.
Notice given an employer, and the employer’s promise to repair, were bases upon which cases cited here by appellant were distinguished in Roach v. Haynes, 189 Ark. 399, 72 S. W. 2d 532. Mr. Justice Butler expressed the court’s view that although the employe be skilled in operation of the appliance being handled, and knew of defects, and had an appreciation of danger incident to vices, the master’s promise to repair created a new relationship, effect of which was to remove the assumption of risk, within the limitations drawn. The rule in reverse was expressed in St. Louis, I. M. & S. Ry. Co. v. Holman, 90 Ark. 555, 120 S. W. 146. Mr. Justice Wood there said that a promise by the master to repair, and the servant’s continuance in service in reliance upon the assurance “[creates] a new stipulation whereby the master assumes the risk impendent during the time specified for the repairs to be made.” See Reader Railroad v. Sanders, 192 Ark. 28, 90 S. W. 2d 762.
Second. — Harris, the foreman, was sued jointly with the Siegel company. Judgment was neither for nor against him, no verdict having been signed except - the one finding against appellant. The new relationship grew out of the foreman’s instructions; but, necessarily, appellee’s work had to be done with a machine he thought was dangerous. Harris’ position and his authority were, in law, such as to justify appellee in remaining at his post unless the danger was so apparent no reasonable person would have done so. This was not the case; nor do we think there is want of substantial evidence to sustain the presumption that Harris had authority to direct appellee.
In Mississippi River Fuel Corp. v. Senn, 184 Ark. 554, 43 S. W. 2d 255, there was a finding in favor of the appellee, an injured employe. The act of negligence causing injury was by Hudgins, a fellow-servant, whom the jury found blameless. In the opinion (as to which there were dissents by Mr. Justice Frank G. Smith and Mr. Justice McHaney) it was held that the verdict in favor of Hudgins was not inharmonious with a finding against the fuel corporation: this because the appellee might recover from the corporation notwithstanding his own contributory negligence, but could not prevail against the fellow-servant, “. . . no matter how guilty [the fellow-servant] might have been of negligence, if the injured party was guilty of contributory negligence.” By this decision the comparative negligence doctrine (applicable to a corporation as distinguished from an individual) permits recovery against the artificial entity in circumstances where no claim could be sustained against a natural person. See Dierks Lumiber & Coal Co. v. Noles, 201 Ark. 1088, 148 S. W. 2d 650.
Third. — Was assumption of risk as a defense submitted to the jury? By instruction No. 1 there-was direction to find for the plaintiff (1) if the blades had become dull; (2) if that fact, being known to appellee, was bjr him brought to the foreman’s attention, coupled with a request for replacements; (3) if Harris promised to repair and requested appellee to continue work; (4) if bjr reason of such defects appellee sustained the injury complained of “. . . within a short period of time after Harris had promised to repair the defects, if any,” and if the hurt occurred while appellee was exercising due care and was properly performing* his duty. Final condition was that the injury must have been “. . . directly caused by the dull condition of the cutting blades.” Long Bell Lumber Co. v. Tarver, 196 Ark. 275, 118 S. W. 2d 282, and cases cited in these reports. Instruction No. 1 was “binding.” Missouri Pacific Railroad Co. v. Dalby, 199 Ark. 49, 132 S. W. 2d 646. A “binding’” instruction, if inherently wrong, is not cured by a correct instruction.
To repeat, the only negligence relied on is that the blades were dull. No contributory negligence is testified to other than appellee’s act in continuing* to work after he had requested repairs. The foreman’s directions, as in Railway v. Holman, created a new relationship. The instruction, therefore, was not erroneous.
Fourth. — Instruction No. 7 told the jury appellee did not assume risks arising from negligence the defendant may have been guilty of, “. . . unless he knew of and appreciated the dangers arising therefrom.” Insistence is that there is absence of evidence-that appellee did not understand the dangers. Again, the answer is that with creation of the new relationship, risks clue to dull blades during the reasonable period operations continued were, in a sense, underwritten by appellant.
If it be conceded appellee knew of and appreciated gravity of the danger, reply is that he told Harris the machine ivas unsafe. From, then until the so-called reasonable period expired, appellee acted in reliance upon the foreman’s implied assurance, and any injury resulting from dull blades became appellant’s liability while the work was being done as usual. Since there is no testimony appellee altered his conduct or varied his methods after promise, objection to the instruction cannot be sustained.
Fifth. — What has been said in respect of the law’s presumption that a new relationship arises when there is complaint of defects and promise to repair, is applicable to plaintiff’s instruction No. 8. It told the jury that if Siegel’s foreman asked appellee to continue work, “. . . the defendant assumed the risk of injury during the time specified for making repairs.” There was the added admonition: “. . . unless you further find . . . that the dangers were so open, obvious, and apparent, that no ordinarily prudent person would have continued [at work], notwithstanding the assurance of his foreman.”
Sixth. — Defendant’s instruction No. 8 (refused) would have told the jury appellant was only required to use ordinary care to prevent injury; that the foreman ££. . . should have foreseen an injury would be the natural and probable result or consequence ’of the alleged negligence. ’ ’
Appellee’s instruction No. 4 declared the law to be that plaintiff’s burden was to prove the defendants were guilty of negligence when Harris directed continuance of work, if it should be found as a matter of fact that the blades were dull. We think it was the jury’s duty to determine whether Harris (after receiving the essential information from appellee) was negligent in directing continued use of the machine. The foreman’s ability to foresee that an injury “would” be the result of failure to make repairs is not a correct statement. To have foreseen that an injury would occiir is one thing; to have apprehended it might occur is another. Hence, it was not error to refuse defendant’s instruction No. 8.
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Hart, C. J.,
(after stating the facts). The sole ground relied upon by the plaintiff for a reversal of the judgment is that, because he was a member of the Legislature, no order of dismissal could have been -made by the chancery court in the case.
Section 429 of Crawford & Moses’ Digest provides that the members of the Senate and House of Representatives shall be. privileged from arrest during the session of the General Assembly and .for fifteen days before the commencement and after the termination of each session. Section 430 provides that all proceedings in suits pendr ing in any of the courts of this State, in which any of the persons named in the preceding section are parties, shall be stayed during the time aforesaid. It is the contention of counsel for plaintiff that the dismissal of the action for the failure to give the bond for costs or to deposit one thousand dollars with the clerk of the court for the payment of the fees of the master, was a proceeding which should have been stayed under the provisions of the statute. We do not think so.
Proceedings, both in common parlance and in legal acceptance, imply action, procedure, and prosecution. Hence it indicates some steps taken or adopted in the prosecution or defense of an action. Beers v. Haughton, 9 Pet. (U. S.) 329, 9 L. ed. 145.
It is questionable, upon the facts appearing in the record before us, whether there was any proceeding before the court for trial. The court had already made an order that the action should be dismissed if the plaintiff did not make the deposit or give the bond required by tbe court within ten days. This the plaintiff not only failed,, bnt refused, to do. At the time the order now complained of was made, he was still refusing to comply with the former order of the court, and did not ask for time in which to comply with it. There was nothing to be done in the case except to enter of record a final order dismissing the case. No step requiring the presence of the plaintiff was necessary. No proceeding was to be taken in the case which required any action on his part or his presence in court. The simple entry of dismissal was not a proceeding in the ease which it was the intention of the framers of the statute to stay during the session of the General Assembly and for fifteen days before the commencement of and after the end of it.
Therefore the decree of the chancery court will be affirmed. | [
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Wood, J.
This is an action by E. A. Stacy and his wife, Lizzie Harvey Stacy, against Zoe D. Stacy, widow of John Latham Stacy, John Latham Stacy, Jr., Rose Elizabeth Stacy, Jean Stacy and Allen Dodson Stacy,' minor children of John Latham and Zoe D. Stacy. John Latham Stacy hereafter, for convenience, will be referred to as J. L. Stacy. It is alleged, in substance, in the complaint that E. A. Stacy and wife are parents of J. L. Stacy, deceased; that J. L. Stacy purchased in his own name a certain tract of land in Crittenden County, described in the complaint, consisting of about one hundred' acre®; that the purchase money to make the cash payments was furnished by the plaintiffs, and they became liable also for the deferred payments; that it was the understanding between them and J. L. Stacy, their son, that he should' hold the legal title to the property for the use and benefit of the plaintiffs; that neither the purchase money nor the land was intended as a gift or advancement to their son, J. L. Stacy. The prayer of the complaint was that the defendants be declared to hold the legal title in trust for the plaintiffs and that plaintiffs’ title be quieted as against the defendants.
All of the material allegations of the complaint which the defendants desired to controvert were denied, and properly put in issue by answers filed for the defendants. Mrs. Zoe D. Stacy, the widow, admitted the purchase by her husband of the lands in controversy, but denied that the plaintiffs furnished the cash payments and that they became liable for the further payments on the land. She denied that any money furnished by the plaintiffs to her husband, J. L. Stacy, was not intended as a gift or advancement. She alleged that, by the death of her husband, she was entitled to dower and homestead in the lands in controversy, and that their minor children were seized in fee of the lands in controversy, subject to her dower and homestead rights. By way of cross-complaint the defendants alleged that plaintiffs had converted the rents and profits of the lands for the years 1924 and 1925, and they prayed for all proper relief.
E. A. Stacy testified, in substance, that he lived at Piedmont, California, and also at Dell, Arkansas. His occupation had been that of a planter. He was the father of John Stacy, deceased, who died in March, 1924, leaving surviving him his widow and the minor children named, his only heirs at law, the defendants herein. The oldest of the children was born in 1916 or 1917 and the others about one year apart thereafter. On February 6, 1922, J. L. Stacy entered into a contract with Mrs. Shell Gleason for the purchase of her homestead and dower interest in the lands in controversy, by the terms of which Stacy was to pay Mrs. Gleason $300 cash as earnest money and the further sum of $1,000 in the event that he 'succeeded in purchasing at a probate sale the interest of the two minor heirs of Shell Gleason, for which he was to pay a Btun not in excess of $5,000. If he succeeded in making the purchase at the probate sale he was to execute his note in the sum of $700, balance of the purchase money, to Mrs. Shell Gleason, payable December 1, 1922, at six per cent, per annum from date. In the event Stacy failed to make the purchase at the probate sale, he was to have the rental of the property for the year 1922 in consideration of the earnest money already paid. That contract was the beginning of the negotiations which afterwards resulted in the consummation of the purchase of the lands, in controversy by J. L. Stacy. Witness had sold the Green River place belonging to his wife, consisting of about 900 acres, to one Jennings, and was living in Piedmont, California. His son, Latham, continued to superintend the River place for Jennings. As soon as his son informed witness that Gleason had died and the Gleason place would have to be sold, witness suggested to his son that this was the place witness wanted, because it would be a good harbor for them from the River place in case of overflow, as this Gleason land, consisting of about 100 acres, was behind the levee. Witness instructed his son. to begin negotiations for the purchase of it at once, and the above contract with Mrs. Gleason was the line adopted by his son for the purchase. Witness’ suggestion to purchase the place came from witness, as witness was to supply the money. His son did not have any money. Witness furnished the money to pay Mrs. Gleason. The sale was afterwards made to J. L. Stacy, witness paying the necessary money. Witness paid both the money that went to Mrs. Gleason and also the other part of the purchase money. His son, J. L. Stacy, would advise witness of the amounts owing, and witness would pay the same through his son. "Witness sent checks, and they came hack canceled. When witness bought the land through his son, the deed was taken in J. L. Stacy’s name because it was the purpose of witness and his wife to give their -son, J. L. Stacy, when witness died, that part of the estate known as the Green River place. They wanted to give J. L. Stacy that place because it would afford him a substantial income for the support of his large and growing family. Witness did not know how long his son would work for Jennings, and it was time for him to be embarking in some enterprise of his own and getting a start in life. That is the reason why witness had spent $7,000 through his son, J. L. Stacy, in an effort to clear up the River place. When Gleason died, witness saw the opportunity of acquiring the land in controversy, and he took up the purchase thereof through his son and ‘£ put the thing in his name that he might have the chance of setting out in life, ’ ’ with that place in view. However, nothing at all was ever said about giving him that place before witness and his wife died. They had no idea of dividing their estate before death. They wanted him to have that place as a part of their inheritance at their death. They expected to leave him that in their wills, and wanted to make it as productive as possible when they left it. The place was bought for the estate of witness and wife. Witness and his wife each owned one-half of the purchase money that was furnished to purchase the place. Witness acted as his wife’s agent in making the purchase. J. L. Stacy held the particular tract of land in controversy in trust for the use and benefit of witness and wife. J. L. Stacy offered by letter to convey the land. Witness received a letter from his son, J. L. Stacy, to the effect that he would make witness a deed. That letter was thrown away, witness, having no idea at the time that this controversy would arise. In the fall before J. L. Stacy died he visited witness and his mother in California. At that time, after recounting his' discouragements - under which he had labored in getting* a start, lie wanted to turn back the Green Elver place and all the other property he had been handling since witness left for California, including* the Gleason property. Witness encouraged his son to go back, telling him that everything would turn out all right; thajt witness would hack him and give him a chance. His son went back very much relieved, and told witness that he was ready to resume his work. At the time the purchase was made of the land in controversy, witness had an understanding with his son that the title should go in the name of his son, J. L. Stacy, but that the property should inure to the benefit of witness and his wife. Witness was not giving away his property during his lifetime. He had no idea of doing that, and often so stated to his boys. All proceeds from the Gleason place and the River place were managed in the same way by witness’ son. When a final account was made for the year the whole place was included in it. Witness just let his boys use the money for both places.
Further along in his testimony witness stated that it was an express agreement between himself and son, J. L. Stacy, that the latter should hold the land in controversy in trust for witness; that agreement was not in writing, but grew out of the relation between the eldest son and his father trying to help his son start in life without giving him his property before his death. At one time, as shown by a letter to his mother, he wanted to quitclaim the particular property in controversy to witness, but witness told him to keep it; and then, at the time when he was in extreme difficulty, he wanted to turn it all back, as witness, presumed, because he did not want the estate to be jeopardized. Witness did not accept it. The son, J. L. Stacy, paid all the taxes and interest up to the time of his death.
On being recalled, witness further testified that when his son, J. L. Stacy, made a 'contract with Mrs. Gleason to purchase her dower interest in the property, he wired his son to purchase all of the interest; Witness paid on the purchase .price the sum of $3,000. Besides this, he introduced three cheeks amounting to $1,400. If witness paid any other money on that place he did not have record of it, hut he instructed his son to put it in a farm loan. The balance due of thirty-odd hundred dollars came due in October or November, 1922, and J. L. Stacy consummated the loan on December 1,1922, and witness was ■sure that he applied that money on the payment of the purchase price, because that was witness’ instruction. A deed from W. B. Rhodes, curator of the minor children of Gleason, was introduced, showing that the lands were purchased from the curator for the total consideration of $5,000, $1,683.34 in cash, and the balance due October 15, 1922, evidenced by note.
-Mrs. Lizzie Harvey Stacy testified that she was named as one of the plaintiffs in the cause, .and was the wife of E. A. Stacy, the other plaintiff, and the mother of J. L. Stacy, deceased. She lives at Piedmont, California. She identified a. letter which she received from her son, J. L.. Stacy, about June 2, 1923, written from Dell, Arkansas. She stated that she owned a half Interest in the lands in controversy. Her son, J. L. Stacy, bought it for his father and witness. Witness knew that J. L. Stacy wrote to his father in regard to buying the place for them. The place was bought by J. L. Stacy through the instructions of her husband, E. A. Stacy, Sr. It was not the intention of witness or E. A. Stacy, Sr., to permit J. L. Stacy to keep the place for himself, and J. L. Stacy did not invest his own money in it. Witness and her son, J. L. Stacy, did not consider-that the Gleason place belonged to J. L. Stacy. The letter which witness identified was introduced in evidence. It is too long and would unduly extend this opinion to set it forth, and we deem it unnecessary to do so. That portion of the letter relevant here is the following-excerpt: “When I bought the Gleason place, I wrote Father that, while I was buying in my name, I would make out a quitclaim deed to him, just as soon as the sale was cleared up. He wrote me back to keep it in my name, and since that time I have invested some of my own money in it. In case he should want his money out of that, with interest, I feel confident that I could sell it tomorrow and get it for him.”
The trial court found that the land in controversy was purchased with the funds of plaintiffs by J. L. Stacy and that the legal title was taken in the name of J. L. Stacy; that the beneficial title to the land belongs to the plaintiffs, who paid the consideration therefor. The court thereupon entered its decree divesting the defendants of all right, title and interest in the land, and vesting* the same in the plaintiffs. From that decree is this appeal.
1. It is first contended by learned counsel for appellants that Mrs. Lizzié Harvey Stacy is not a party to this action, and that her testimony was therefore incompetent, and that the letter above mentioned, which she identified and which' was introduced in evidence, was also incompetent. There is no merit in this contention. The transcript of the record wherein the pleadings are set forth contains a pleading which was filed by the clerk of the chancery court of Crittenden County, February 10, 1926, which is as follows:
“Come now the plaintiffs, and would respectfully show to the court that Lizzie Harvey Stacy is the owner of an undivided one-half interest in and to the property described in the original complaint filed herein by E. A. Stacy, Sr.; that the plaintiff, E. A. Stacy, Sr., as the agent of said Lizzie Harvey Stacy, managed and controlled her interest and the money with which the interest in said land was purchased, and in fact carried on all the negotiations, in so far as same pertained to the interest of the plaintiff, Lizzie Harvey Stacy, and the plaintiff, Lizzie Harvey Stacy, hereby adopts the original complaint filed by plaintiff, E. A. Stacy, Sr., as her complaint. The plaintiff, E. A. Stacy, Sr., by leave of court first had and obtained, amends his original complaint herein filed by making Lizzie Harvey Stacy a party thereto.”
The record shows that, on the 9th day of January, 1926, the deposition of E. A. Stacy, Sr., was taken by consent. While the original deposition appears to have been taken on that day by agreement of counsel for all the parties, the certificate of the notary shows that thereafter, on the 2d day of March, 1926, certain exhibits called for by certain questions in the original deposition were added to the deposition. Thereafter, on the 8th of March, 1926, the deposition of Mrs. E. A. Stacy was likewise taken by agreement of all the parties. These depositions were styled “E. A. Stacy, Sr., and Lizzie Harvey Stacy, plaintiffs, v. Zoe D. Stacy, John Latham Stacy, Jr., Rose Elizabeth Stacy, Jean Stacy and Allen Dodson Stacy, defendants,” and were filed in that cause on October 18, 1926. ' The decree is styled in the same manner as the depositions, and it recites that the cause came on to be heard at the October term of the court, plaintiffs being present by their attorney, and defendants being present by their respective attorneys. While there was no formal order entered of record showing that Mrs. Lizzie Harvey Stacy was made a party plaintiff, yet the above record entries clearly show that the court and the parties treated her as a party plaintiff. These entries are ás conclusive of the fact that the original complaint was amended to make her a party plaintiff and that she adopted the original allegations of the complaint in asking the relief prayed therein as if there had been a record entry showing a formal order of the court making her a party plaintiff. Such formal order was not essential to her becoming a party plaintiff in the cause when the orders and recitals of the record show that she did, in fact, by consent'of the court and parties, become a party plaintiff. After the deposition of E. A. Stacy, Sr., disclosed the fact that his wife owned a half interest in the purchase money, which, according to his testimony, was furnished to J. L. Stacy to purchase the land in controversy, it was essential that she be made a party, and the court and the parties very properly treated her as one of the necessary parties plaintiff to the action. See §§ 1089, 1101, 1102, and 1239, C. & M. Digest. The making of her a party plaintiff did not change substantially the cause of action, but only icon-firmed the facts proved. See § 1239, C. & M. Digest; also Bloom v. Home Insurance Agency, 91 Ark. 367, 121 S. W. 293; Rucker v. Martin, 94 Ark. 365, 126 S. W. 1062; Citizens’ Fire Ins. Co. v. Lord, 100 Ark. 212, 139 S. W. 1114; Oak Leaf Mill Co. v. Cooper, 103 Ark. 79, 146 S. W. 130. Since Mrs. Stacy was a party plaintiff, her testimony was competent, and likewise the letter from J. L. Stacy to her concerning the purchase of the land in controversy.
2. The complaint alleged that J. L. Stacy purchased the land in controversy- in his own name and that E. A. Stacy, Sr., furnished the cash payment and became liable for the deferred payments, with the understanding* that J. L. -Stacy should hold the legal title to the property for the use and benefit of E. A. Stacy, Sr. The above allegation would justify the introduction of testimony to prove either an express or an implied trust. To establish an express trust it was necessary for the appellees to show that J. L. Stacy, before or at the time he purchased the property, and before or at the time the deed thereto was executed and delivered to- him, had executed some writing declaring that he held the property in trust for the appellees. This the appellees have wholly failed to do.
Our statute, § 4867 of O. & M. Digest, provides: “All declarations or creations of trusts or confidences of any lands or tenements shall be manifested and proved by some writing signed by the party who is or shall be by law enabled to declare such trusts, or by his last will in writing, or else they shall be void,” etc. We find no proof whatever in the record of an express trust.
The next question is whether or not the appellees have proved that J. L. Stacy held the land in controversy under an implied trust, which term includes constructive trusts, or trusts ex maleficio, and resulting trusts. These implied trusts, which arise or result by implication of law, may be proved by oral testimony. Section 4868, C. & M. Digest; Bray v. Timms, 162 Ark. 247, 271 and 272, 258 S. W. 338. In the above case, at page 271, we approved Mr. Pomeroy’s definition of a resulting trust as follows:
“Resulting trusts arise where the legal estate is disposed of or acquired, not fraudulently or in the violation of any fiduciary duty, hut the intent, in theory of equity, appears or is inferred or assumed from the terms of the disposition, or from the accompanying facts and circumstances, that the beneficial interest is not to go with the legal title. In such case a trust results in favor of the person for whom the equitable interest is thus assumed to have been intended, and whom equity deems to be the real owner.”
And on page 274 (258 S. W. 346) we further said, quoting from the learned author: “Second well-settled and even common form of trusts ex maleficio occurs whenever a person acquires the legal title to land or other property by means of an intentionally false and fraudulent verbal promise to hold the same for a certain specified purpose, as, for example, the promise to convey the land to a designated individual, or to reconvey it to the grantor, and the like, and, having thus fraudulently obtained the title, he retains, uses, and claims the property as absolutely his own, so that the whole transaction by means of which the ownership is obtained is in fact a scheme of actual deceit. Equity regards such a person as holding the property charged with a constructive trust, and will compel him to fulfill the trust by conveying according to his engagement. ’ ’
Now, the excerpt from the letter which we have set forth shows conclusively that J. L. Stacy, in buying the property in his own name, did not do so with the intention of holding the same against the appellees; but, on the contrary, he expressly recognized that his father was entitled to a quitclaim deed to the property. At no time prior to his death did J. L. Stacy express any desire or' intention to hold the property against his father’s wishes. Therefore we would not be warranted, under any view of the evidence, in concluding that J. L. Stacy was hold ing the property as a trustee ex maleficio. The proof exonerates him entirely from even the slightest imputation of fraud in acquiring the property in his own name instead of that of his father.
Having reached the conclusion that there is no testimony to establish an express trust and none to establish a constructive trust, the only remaining question is whether or not the appellees have established a resulting trust in their favor to- the land in controversy. In Murchison v. Murchison, 156 Ark. 403-407, 246 S. W. 499, 500, we said: “While it is necessary that the proof to establish a resulting trust should be clear, satisfactory and convincing, it is- not essential that it be undisputed. ’ ’ In Reaves v. Reaves, 165 Ark. 505, 264 S. W. 979, we held, quoting syllabus: “In order to constitute a resulting trust, the purchase money or a specified part of it must be paid by another, or secured by another at the same time or previously to the purchase, and must be a part of that transaction.”
We'have set forth all the salient features of the testimony, and it could serve no useful purpose to review the same in detail, by way. of argument, to sustain the conclusion reached. Let it 'Suffice to say we are convinced that the only reasonable conclusion that can be drawn from the testimony is that J. L. Stacy purchased the land in controversy under the direction, and acting as the agent, of his father and mother; they furnished the money to make -the necessary original cash payment of the purchase price, and the place itself was mortgaged for the balance of the purchase money. The negotiations were conducted through J. L. Stacy because he was on the ground and they were in California, and the contract for the deed and purchase were made in his name because of convenience, and because it was their purpose that the property in -controversy, together with 900 acres, designated as the “River Place,” should go to J. L. Stacy by will, or inheritance, as his part of their estate. A1Í this is fully and clearly explained by the testimony of E. A. Stacy, Sr. The excerpt from the let ter of J. L. 'Stacy to his mother concerning the purchase corroborates the testimony of his father, and, it occurs to us, shows conclusively that, when he purchased the property in controversy, he did so for his father and mother.
In Holland v. Bonner, 142 Ark. 214-222, 218 S. W. 665, 667, 26 A. L. R. 1101, we said: “An advancement is a gift by a parent to a child in anticipation of that which it is supposed the child will be entitled to on the death of the parent. The question as to whether or not a conveyance or transfer of money or property is regarded as a simple gift, or advancement, or a sale, is to be determined by the intention of the parent. The question as to what was the intention is generally purely one of fact to be ascertained from the circumstances of the transaction. The donor’s intention is the controlling principle, and, if it can be said from all the circumstances surrounding a particular ease that the parent intended a transfer of property to a child to represent a portion of the child’s supposed share in the parent’s estate, such transfer will be treated in law as an advancement. Conversely, if it appears that the ancestor intended that a gift to his child should not be treated as an advancement, such intention will prevail.” See authorities there cited.
“A complete advancement is an irrevocable gift, and once it has been made the donor has no right or power to revoke the same.” -1 R. O. L. § 1, page 653; § 29, page 672.
Now, at the time the deed was executed to the land in controversy the same evidenced either a gift outright or a gift by way of advancement to J. L. Stacy. Although the appellees may not have known at the time the deed was executed that title was being taken in the name of J. L. Stacy, yet they were afterwards informed thereof, as appears from J. L. Stacy’s letter to his mother, and, when he proposed to make a quitclaim deed to his father, he was told by his father to keep the title in his name. Therefore the transaction was tantamount to a purchase of the land by E. A. Stacy and wife and direction by them that the deed should be made in the name of J. L. Stacy. The purchase, under these circumstances, raised the presumption of an advancement. Robinson v. Robinson, 45 Ark. 481; Bogey v. Roberts, 48 Ark. 17, 2 S. W. 186, 3 Am. St. Rep. 211; Chambers v. Michael, 71 Ark. 374, 74 S. W. 516; Poole v. Oliver, 89 Ark. 580, 117 S. W. 747; Doyle v. Davis, 127 Ark. 302, 192 S. W. 229. But it occurs to us that this presumption is overcome by the undisputed proof in this case of facts existing before and at the time of the execution of the deed and so soon thereafter as to form a part of the transaction, which facts show that it was not the intention of the parents to give their son, J. L. Stacy, an absolute title to the property in controversy by way of advancement. The only proof in the recoiA is by the testimony of the parents and the excerpt from the letter of J. L. Stacy to his mother. B'ottomed alone upen this,, as already stated, it seems to us it is impossible to escape the conclusion that the deed to the land in controversy was intended by the parents not as a gift by way of advancement to their son, but as creating a resulting trust to him for their benefit. It is clear beyond reasonable controversy, we believe, that it was not the intention of Mr. and Mrs. Stacy to place the irrevocable title to the Grleason place, the land in controversy, in their son, J. L. Stacy, any more than it was their intention to so place the River place. It was their intention that he should have the Grleason place and also the River place by way of a will, or inheritance, but not as an irrevocable gift during their lifetime. J. L. Stacy himself, in the excerpt from his letter to his mother, clearly recognized the fact that his parents would be entitled to a quitclaim deed from him to the land in controversy at that' time. And that is certainly the only conclusion to be reached from the testimony of his parents.
3. The appellants contend that the appellees are estopped from maintaining the action. But neither- the pleadings nor proof justify this contention. The appellants predicate this contention upon the statement con tained in tlie letter of J. L. Stacy to his mother, to the effect that, after writing his father that he would make a quitclaim deed to him as soon as the sale was cleared up, his fathetr replied, telling him to keep the place in his name, and that, since that time, he had invested some of his own money in the place. This testimony is entirely too indefinite and uncertain to warrant the court in declaring that the appellees are estopped from maintaining their action. There is nothing to show the amount of money J. L. Stacy spent, and nothing to show that it was spent in the belief that his parents had made him an irrevocable gift of the place' in controversy; and nothing to show that whatever money he did spend on the Gleason place was with the assurance from them that the place was his own. The fact that he stated that he was ready to .sell the place if his father wanted his money tends strongly to prove that he recognized his parents’ right to the beneficial control of the property, and that he was ready to sell if they so desired.
The decree is therefore correct, and it is affirmed. | [
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Holt, J.
March 23,1931, appellants, Cassie Walker and York Walker, her husband, together with Tyree Walker, executed and delivered three notes to Mrs. Della Mullins in the total amount of $588.49. The first note was for $200 and due November 1, 1931, the second note was also for $200, due November 1, 1932, and the third note was for $188.49 and due November 1, 1933. Each note bore 10 per cent, interest from maturity, and as security the Walkers executed a deed of trust in favor of Mrs. Mullins on an undivided one-twelfth interest of Cassie Walker in 360 acres of land in Columbia county. Mrs. Della Mullins died November 2G, 1934. The first of the above notes was paid when due, but the principal and interest of the two remaining notes have not been paid. Appellee, A. R. Mullins, is the surviving husband of Della Mullins, and appellees, Frank and Edwin Mullins, are the sons of A. R. Mullins and Mrs. Mullins.
The evidence shows that prior to January 2, 1937, appellants, upon being pressed to pay the two unpaid notes, agreed to execute a deed to appellees to the property described in the deed of trust, in satisfaction of the balance due on the debt, but this deed was never delivered. At the same time this agreement was made with respect to the deed, January 2, 1937, appellants, Carrie and York Walker, entered into what was termed a written “contract of sale and rent” with appellees, A. R. Mullins and his two sons, Edwin and Frank, under the terms of which it was provided that appellees agreed to sell to appellants a certain described tract of land in Columbia county containing thirty acres, the consideration being set out as eleven notes of $75 each, bearing interest from date until paid at 8 per cent, per annum, the first note due November 1, 1937, and one of the ten remaining notes to become due November 1 each year thereafter until November 1, 1947, when the last note was to become due. It was further stipulated that when all notes were paid appellees were to execute á warranty deed to the land described to appellants. •
Appellants did not pay any of the eleven notes set out in this sale and repurchase agreement.
February 8, 1941, appellees filed suit against appellants to foreclose the deed of trust. Appellants denied that they owed the debt sued on and specifically pleaded as a defense the statute of limitation of five years, (Pope’s Digest, § 8933). From a decree in favor of appellees is this appeal.
Appellants contended below, and insist here, that the debt sued on is barred by the five-year statute of limitation.
The trial court made certain findings and conclusions from which we quote the following: “Before the said notes and deed of trust were barred by the statute of limitations, plaintiffs began pressing defendants for payment of said indebtedness, and as a result thereof plaintiffs and defendants entered into an agreement whereby defendants, Cassie Walker and York Walker, were to deed to plaintiffs the lands covered by their deed of trust and in turn defendants were to repurchase same by the payment of $75 per year for eleven years, which represented the interest and principal of the indebtedness contained in the notes sued on herein. This agreement was entered into on the 2d day of January, 1937. However, the deed of conveyance from the defendants to the plaintiffs was never delivered, but the plaintiffs and defendants did execute a rent and sale contract which set out the indebtedness, and conveyed the following lands in Columbia county, Arkansas, to-wit: (here follows description of the land, containing thirty acres) to defendants, provided they made the payments set out therein. The land as described in the deed of trust had been divided by the heirs of the Wm. Doss estate, and the land included in the contract of repurchase represented Cassie Walker’s undivided l-12th interest in the 360 acres aforesaid. The court finds that the aforesaid contract of repurchase, executed for the specific purpose of preventing foreclosure of the deed of trust, and including the debt sued on herein as the consideration therefor, being in writing, signed by all of the parties hereto, stayed the statute of limitations and made a new point for same to begin to run, and that said notes and deed of trust are not barred by said statute, and that plaintiffs should have judgment on their notes sued on herein. ’ ’
It is our view that this finding is supported by a great preponderance of the testimony and the conclusions reached are correct. It must be borne in mind that appellants admit the execution of the two unpaid notes and deed of trust upon which this suit is based. These notes, together with the deed of trust, were executed in favor of Mrs. Della Mullins, the wife of appellee, A. it. Mullins, and the mother of Frank and Edwin Mullins, her two sons and sole surviving heirs. These notes were not paid on January 2, 1937, when the contract of sale and rent, supra, was entered into between appellees and appellants. There was but one debt which appellants owed appellees at that time and that was the amount due on these two unpaid notes. While the debt in question is not specifically identified in the sale and rent agreement, we think it is identified by implication. The rights only of the appellants, makers of the notes and deed of trust, and appellees, the heirs of the grantee in the deed of trust, Mrs. Della Mullins, are present. The rights of third parties are not involved, and we think' the sale agreement, supra, was a sufficient acknowledgment of the debt, and created a new date from which the statute of limitation began to run. On the evidence before us we think it clear also that the land described in the deed of trust as one-twelfth of 360 acres in Columbia county, which represented the interest of Lassie Walker in the estate of Wm. Doss, deceased, is the same land described in the sale and rent contract, supra, representing thirty acres after her interest in the Doss estate had been partitioned and set aside to her. In other words, the description in the deed of trust represents her undivided one-twelfth interest, whereas the description in the rent and sale contract represents her interest after the division.-
On the question whether there has been a written acknowledgment of the existence of a specific debt sufficient to create a new period from which the statute of limitation runs, this court in a very recent decision, Street Improvement District No. 113 v. Mooney, 203 Ark. 745, 158 S. W. 2d 661, said (quoting with approval from Hunt et al. v. Lyndonville Savings Bank & Trust Co., et al., 103 Fed. 852): “In considering whether there has been a sufficient acknowledgment in writing to toll the statute of limitations, the question to be determined is the intention of the debtor. It is generally held to be sufficient if, by fair construction, the writing constitutes an admission that the claim is a subsisting debt unaccompanied by any circumstances repelling the presumption of the party’s willingness or intention to pay. ... A quotation from 19 American & English Encyclopedia of Law, (2d Ed.) 303, is: ‘A mere acknowledgment of the claim as an existing obligation is such an admission'as the law will imply therefrom a new promise to pay, which will start the statute anew, when it -is not accompanied by anything negativing the presumption of an intention to pay the debt.’ . . . Wood on Limitations, vol. 1 (4 Ed.), p. 344, states the rule to be that where an acknowledgment is relied upon to renew a debt, four requisites are indispensable: (1) The acknowledgment must be in’terms sufficient to warrant the inference of a promise to pay the debt. (2) It must be made to the proper person. (3) It must be made by the proper person. (4) Necessary formalities must attend, where such are required by statute. . . . It is then said ‘From these rules it will be seen that, whatever abstruse theories may formerly have existed in reference to the principles upon which these statutes are predicated or- in reference to the presumption arising therefrom, it is now well settled that no acknowledgment is sufficient to take a case out of the statute, unless it is of such a character that a new promise sufficient to revive the debt can be fairly drawn therefrom; and the theory upon which the courts proceed is that the old debt forms a good consideration for a new promise, either express or implied, and that any clear and unequivocal admission of the debt as an existing liability carries with it an implied promise to pay, unless such inference is rebutted either by the circumstances or the language used.’ ”
Finding no error, the decree is affirmed. | [
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Smith, J.
Appellant, for himself and for the benefit of all other citizens and taxpayers of Independence county, brought this suit to recover certain fees alleged to have been paid to and to have been collected by appellee without authority of law. He predicates his suit upon an initiated salary act enacted by the electors of Independence county at the 1936 general election. Among its other provisions this Act provided for the separation of the offices of sheriff and collector, and fixed a salary of $2,400, payable in monthly installments of $200, for each office. Section 6 of this Act reads as follows: “The offices of sheriff and ex-officio collector are hereby severed and hereafter there shall be a tax collector elected in the manner provided by law, same as other county officers, at the general election. ’ ’
At the same election at which the Act was adopted, appellee was elected sheriff and collector, and filled both offices until the next election, at which time he was re-' elected sheriff, and another person was elected collector.
The suit was filed September 5, 1941, and it is alleged that appellee wrongfully collected the salary of -collector for the two-year period ending December 31, 1938, while serving during that period of time as sheriff of the county. The complaint also alleges that appellee was wrongfully allowed certain fees as mileage on process served for the county, and wrongfully converted and failed to account for certain mileage fees collected in civil litigation, which the salary act required him to collect for the use and benefit of the county.
An order was made requiring appellant to give bond for costs, and upon his failure to comply with this order the suit was dismissed, and from that judgment is this appeal.
An answer was filed by appellee, with a motion to dismiss. It was denied in the answer that appellee had collected any unauthorized fees, and the statute of limitations was pleaded as to the claim for the $4,800 collected by appellee as collector while serving also as sheriff.
It is urged for the affirmance of the decree from which is this appeal that as there is no bill of. exceptions no issue is presented for the decision of this court. But we do not agree with that contention. No testimony was heard, but we have before us the complaint and the exhibits thereto and the various motions filed in the cause, and the orders of the court made thereon, and the judgment of the court dismissing the case for the failure to file bond.
In his Supreme Court Procedure, p. 5, Stevenson says: “The record proper includes the pleadings, any exhibits thereto, statement showing service of summons, any material order of court preceding judgment, the judgment itself, motion for new trial, the order overruling same, and the grant of appeal. Morrison v. St. L. S. F. Ry. Co., 87 Ark. 424, 112 S. W. 975.”
We are of the opinion, therefore, that no bill of exceptions is required to present for review the question whether the complaint, with the exhibits thereto, stated a cause of action.
We are of the opinion also that the court below was in error in dismissing the complaint for the failure to give bond. Section 13985, Pope’s Digest, is cited as authority for this action, and no other authority is asserted. It was held, however, in the case of Gladish v. Lovewell, 95 Ark. 618, 130 S. W. 579, that this statute is inapplicable to suits of this character. That case, like this, was a suit against the sheriff and collector for the alleged failure to account for public revenues. It was there said: “We are of the opinion that the chancery-court had no jurisdiction. The statute provides that the suit shall be brought at the instance of a taxpayer, and that the proceedings shall be summary. The primary object of the suit under the statute is to oust the collector from office, if it shall appear that the official acts complained of are fraudulent; and the decree for the moneys which he may have unlawfully detained is a mere incident to the main suit.”
The suit is predicated upon and is authorized by § 13, of art. 16, of the Constitution, and we know of no requirement that a citizen suing under this authority shall give a bond for costs. There was no request for an audit, nor any allegation that one will be required. Jones v. Adkins, 170 Ark. 298, 280 S. W. 389.
As the decree must be reversed and the cause remanded for a trial upon the allegations of the complaint, we take occasion to dispose of certain questions discussed in the briefs.
We think appellee was, not only the de facto, but was the de jure, collector of Independence county for the biennium beginning January 1, 1937, and ending December 31,1938. He was elected as sheriff and ex-officio collector for that period of time. Section 6 of the Salary Act, above quoted, did not contemplate the election of a collector except “at the general election,” which would, of course, be the next ensuing election. This is the express — and only — provision of the Salary Act for filling that office. There was no authority under the Act for the election of a separate collector at the 1936 general election, as the offices of sheriff and collector were not separated until the Act had been adopted at the 1936 general election, and “hereafter,” as the Act states, which means “thereafter,” the tax collector shall be elected, in the manner provided by law, at the general election, which could only be the next ensuing election. We conclude, therefore, that as appellee was elected to fill both offices he was entitled to the emoluments of both offices, as, together, they did not exceed the $5,000 limitation imposed by the Constitution. Seate, ex rel. Poinsett County v. Landers, 183 Ark. 1138, 40 S. W. 2d 432. But, even so, those fees were paid more than three years before the institution of this suit, and the suit is, therefore, barred by the three-year statute of limitations. State, use Garland County, v. Jones, 198 Ark. 756, 131 S. W. 2d 612.
This statute of limitations is applicable also to mileage fees collected more than three years before the institution of this suit.
The decree will, therefore, be reversed and the cause remanded for further proceedings not inconsistent with this opinion. | [
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Smith, J.
This suit was brought by the State Bank Commissioner against the directors of the People’s Bank of Ozark. The complaint alleged that the bank had become insolvent, and that the plaintiff commissioner had taken over its affairs, and, through a partial liquidation of its assets, had paid ¡a dividend of ten per cent, to its creditors, and that the bank had become insolvent through the failure of the defendant directors to discharge the duties imposed upon them by law as directors.
The complaint alleged that the directors failed and neglected to discharge their duties in the following respects: At the first meeting of the board in January,' 1925, the directors ordered that the policy of the bank should be to make no further loans except small loans to regular customers in the due course of business, and the directors so instructed F. E. Stockton, the cashier. This order was made because *the bank at the time was in a badly extended condition, with a large amount of frozen assets and past due paper, but, notwithstanding this condition, the directors, through lack of ordinary care and prudence, permitted the cashier to make many new loans, several of them being in large amounts, and without adequate collateral, and to irresponsible persons. A list of these loans, aggregating $42,695.02, was set out. It was further alleged that a number of these alleged loans were evidenced by notes to which the names of the makers had been forged by the cashier, and that this practice could not have, proceeded far if the directors had discharged their duty by examining the notes.
That on February 12, 1925, the board of directors adopted a resolution authorizing the cashier and other officers of the bank to borrow money from the City National Bank of 'St. Louis, the Merchants’ National Bank of Fort Smith, and the Bankers ’ Trust Company of Little Bock, and to pledge the notes held by the bank as collateral therefor, but, instead of this resolution being correctly entered upon the minutes of the meeting of the directors, the cashier entered a resolution giving him authority to rediscount notes held by the bank as security for loans made by it with any of the correspondent banks, and, by reason of the failure of the directors to see that this resolution was properly entered, the cashier was enabled to obtain large sums of money, which he dissipated in reckless and unauthorized loans. At the time of the trial of this cause in the court below litigation was pending in which liability to the St. Louis bank was denied on account of notes rediscounted to the St. Louis bank, but that case was recently determined by this court in favor of the St. Louis bank. Grand National Bank of St. Louis v. Taylor, 176 Ark. 1, 1 S. W. (2d) 818. That the cashier of the bank erected a business house in Ozark in 1925, and paid the contractor for his work by permitting the contractor to overdraw his building account, and that these overdrafts were carried as bills receivable on the books of the bank, and in this manner the bank sustained a loss of $9,-673.07. That the directors were negligent in permitting and approving loans to the president of the bank and to a brother and a son of the president, and testimony was offered tending to show that all these loans were in fact loans to the president, but were made to the president’s brother and son to prevent it from appearing that the loan limit to any one person had been exceeded.
In response to a motion to make the complaint more definite and certain, an amendment to the complaint was filed, in which it was alleged that the nominal assets which came into the hands of the Bank Commissioner amounted to $550,000, but included in this amount was $67,072.38 of old notes which had been previously charged off as being of no value, and $150,000 of other assets which were without value, and $30,000 in duplicated notes, leaving total assets of $302,927.61, of which $90,000 had been collected, and it was estimated that $90,000 more would be collected. The actual liabilities of .the bank were alleged to be $480,499, and the contingent liabilities were $150,000.
,A demurrer to the complaint was overruled, las was also an additional motion to make the complaint more definite and certain.
The answer filed by the defendant directors denied that they had failed to exercise ordinary care in the matter of seeing that the directions given by them to the cashier were obeyed in the matter of making new loans, and they alleged the fact to be that the cashier was a man in whom they and all others had implicit faith and confidence, and whose good character was unquestioned either for business capacity or integrity. That the cashier had forged the resolution increasing his authority to obtain money from the correspondent banks, and had kept the books of the bank, including the note register, in such manner that they did not know of the unauthorized loans or the forged notes which had been used as collateral to borrow money. They were not aware that the cashier of the bank was using the funds of the bank in an unauthorized way in the construction of a business house, and could not by ordinary care have discovered that fact. The loans to the president of the bank were alleged to have been made at a time when his solvency was not questioned, and it was further alleged that he was solvent, and that the loans to the brother and son of the president were made in good faith and in the exercise of an honest judgment as to the solvency of these parties. The testimony appeal’s, however, to show that the president of the bank is not solvent, at least the Bank Cornmis-' sioner has been unable to collect from him the amount due the bank.
All the allegations of the complaint were put in issue, including the allegations as to the value of the assets which the Bank Commissioner had taken over and those in regard to the actual and contingent liabilities of the bank.
A voluminous record was made at the trial from which this appeal comes, and this opinion would be wearisomely protracted if we were to discuss all the notes and transactions upon which the liability of the directors is predicated. We will content ourselves therefore with a declaration of the legal principles which should be applied, and the liability of the directors will be accordingly determined.
We have had frequent occasion to consider the liability of directors of banks to stockholders as well as creditors for inattention to their duties ¡and for the mismanagement of the bank’s affairs, and a late case is that of Muller v. Planters’ Bank & Trust Co., 169 Ark. 480, 275 S. W. 750. This case cited and to some extent reviewed the leading cases in this State on this subject, land in the syllabus in that case it is said: “While bank directors are liable to stockholders as well as creditors for failure to exercise diligence and good faith in managing the affairs of the bank, the mere exercise of poor judgment is not sufficient to form a basis of liability.”
In the body of the opinion in that case it was said:
“The statute, however, in broad terms, as we have seen, places the ‘stock, property, ¡affairs and business of such corporations’ under the care of their board of directors, to be managed by them. The statute creates a relation and confers a power which necessarily carry with them corresponding duties and liabilities, independent of any statute specifically defining or limiting those duties and liabilities; and in the absence of any statute they must be ascertained and controlled by common-law rules applicable generally to such relations and powers.’ The court then adopted the rule announced by Mr. Justice Harlan in the case of Briggs v. Spaulding, 141 U. S. 132, 11 S. Ct. 924, 35 L. ed. 662, as follows: ‘Directors cannot, in justice to those who deal with the bank, shut their eyes to what is going on around them. It is their duty to use ordinary diligence in ascertaining the condition of its business, and to exercise reasonable control and supervision over its officers. They have something more to do than, from time to time, to elect officers of the bank, and to make declarations of dividends. That which they ought, by proper diligence, to have known as to the general course of business in the bank, they may be presumed to have known, in any contest between the corporation and those who are justified by the circumstances in dealing with its officers upon the basis of that course of business. * * * A rule no less stringent should be applied as between a banking association and directors representing the interests of stockholders and depositors/ The substance therefore of the test laid down in that case of the responsibility of directors to stockholders as well as to creditors, is good faith and diligence.”
Testing the liability of the directors by these rules, we find that they were grossly negligent in the performance of their duties as directors from and after the first of January, 1925.
The testimony shows that an examination of the bank was made about that time by an examiner of the State Banking Department, and it was a mere matter of indulgence on the part of the examiner that the bank was permitted to continue in business. Copies of this report were filed with both the Bank Commissioner and the directors of the bank, and the most casual examination of this report would have shown that the bank was then in a most critical condition.
With a capital of only $'25,000, the president of the bank was liable to it upon two notes totaling $11,020.17, and as an indorser upon the note of his brother for $3,405.15, and the maker of this note testified that the cashier told him that the bank was carrying the president for more than the bank rules would permit. “He asked me if I would take part of it. That is how I took it.” The officers and employees of the bank Avere carrying loans with the bank, including their indorsement, of $24,899.27. The total loans of the bank, as shown by the examiner’s report, amounted to $276,675.10, and included therein were 569 past due notes totaling $165,-853.56, and $16,928.83 in notes were carried as cash items, and there Avas a deficit in the reserve of 11.5 per cent. The report called attention to the fact that the practice of permitting overdrafts appeared to-be habitual, and that these were carried as cash items, and the attention of the directors was also called to the fact that the bank’s other paper was not fairly or sufficiently liquid.
Notwithstanding these facts, we are of the opinion that the directors of the bank are not liable for any losses sustained by transactions occurring before this examination by the bank examiner. Prior to that time the directors were not aware of the precarious condition ■. of the bank; they had met regularly, and had kept their records properly, and had a discount committee which had functioned, and the directors had made an audit of ' the bank’s affairs in the year 1924, The honesty of the directors themselves is not called in question, and it is charged only that they were grossly inattentive to their duties. Most of the loans then existing were renewals of old loans made in more prosperous times and to persons who were regarded as good when these loans were made. A crushing depreciation in values had occurred, which rendered many-persons unable to pay whose paper had .been previously regarded as good. The directors had evidently used poor judgment in making many of these loans, but, as was said in the.Muller case, supra, “the mere exercise of poor judgment is not sufficient to form a basis of liability, for, when- directors are selected by the stockholders, the latter assume the risk of losses occurring on account of mere defects in judgment, and in acceptance of the office by the director he merely assumes the obligation to manage the affairs'of the'institution with diligence and good faith.”
But, as we have said, the directors must have known from the report of the bank examiner, if not otherwise, that the bank was in' a precarious condition when the examiner’s report was filed with them on January 4, 1925, and under these circumstances diligence and good faith reouired them to give closer attention to the bank’s affairs than they had previously done.
In discharge of this duty the directors, at their meeting in January, 1925, directed the cashier to make no new loans except small ones to regular customers in the ordinary course of business. It appears, however, that no intelligent or serious effort was made to enforce this rule. It may be said, in this connection, that the record does not show lany • criminal conduct on the part of the cashier prior to 1925, and that the directors and the community generally had implicit confidence in the cashier’s integrity prior to that time. But with the beginning of this year the cashier commenced a systematic misuse of the bank’s funds. He purchased an eighty-acre tract of land in the city limits, (and he erected a house costing five or six thousand dollars, and he erected a. ten-thousand-dollar business house on one of the principal streets. In addition to this, he engaged in oil ventures; he operated a coal mine; he invested in a diamond cave, and assisted in promoting ¡a vineyard company and a life insurance company, and in aid of these projects he made large and unauthorized loans to himself and to the persons associated with him. In the erection of his business house he directed the contractor to draw against a small account the contractor had with the bank, and these overdrafts were carried as cash items. The directors admitted knowing that the cashier was erecting the building, but they testified that they supposed the money for this purpose had been derived from a loan obtained from a building and loan company, which, however, was not the fact.
The directors made no audit of the bank’s affairs during the year 1925, and had no discount or loan committee. The directors testified that the entire board acted as a discount or loan committee, but'it appears that the cashier made no report on loans until they had been made, and the directors testified that they would have authorized such loans as were reported to them had application therefor been previously submitted to them. Most of the important loans, however, were never sub mitted to the directors, and the cashier’s practice was to conceal questionable and unauthorized loans by giving them the same numbers possessed by smaller and unimportant loans made to persons to whom the directors would have made loans had they been requested so to do.
The cashier commenced the practice and continued it throughout the year 1925 of forging notes to the order of the bank, which he rediscounted with the correspondent banks, • which transactions were without the knowledge of the directors. The practice of the cashier in this respect was detailed in the opinion of this court in the case of Grand National Bank of St. Louis v. Taylor, Bank Commissioner, supra, in which case we held that the bank was liable for the rediscounts so made. It appears, however, that the bank actually received the proceeds of these rediscounts, so that no liability could be predicated upon the transactions themselves. The liability, if any, arises out of the disposition of the fuhds thus obtained.
It appears that the directors not only did not make an audit of the bank’s affairs during the year 19'25, as the rules of the- Banking Department required them to do, but no director ever made any examination of the notes taken by the bank; indeed, they did not even examine the note register, but contented themselves by listening to the cashier read from a prepared statement a list of the loans he had made. The directors failed entirely to hold one monthly meeting, and no minutes of any meeting after September were -ever written up, or approved or signed by the board or its officers.
The directors appeared to have made no effort to require the president of the bank to reduce his own indebtedness to the bank, but actually permitted him to increase his liability from January to September by three thousand dollars.
The directors insist that no supervision on their part would have enabled them to know'the corrupt and criminal practices of the cashier, as he was falsifying his records and forging paper. But it may be said, in answer to this contention, that the cashier’s criminality did not consist of a single or only a few transactions and entries, but was a systematic course of conduct which he no doubt felt free to pursue without fear of detection by the directors through their failure to discharge the functions of their office. The peculations of the cashier were so' open that detection must have resulted from any reasonable attempt at siipervision. Had the directors exercised good faith and reasonable diligence, the cashier would soon have been detected in his practice of making unauthorized loans and rediscounting forged notes with correspondent banks.
We do not hold that the directors were insurers of the honesty or good, faith of the cashier, or that they became liable for his fraudulent conduct simply because, they were directors, for such is not the law as announced in the prior decisions of this court, cited in the Muller case, supra. But’ we do hold them liable for their lack of diligence and good faith in supervising the affairs of the bank. Their inattention to the bank’s affairs furnished the cashier assurance that the boldest and most flagrant conduct on his part would escape their detection and give the cashier an opportunity to loot the bank systematically.
The court below made a finding in favor of the Bank Commissioner on each count o.f the complaint, including a count added at the conclusion of the testimony, which was added to conform to the testimony, and a judgment was rendered against the directors accordingly.
The decree must be reversed, because the court held the directors liable for certain worthless loans made by way of renewal of loans made prior to 1925, and also for certain money borrowed from the correspondent banks without the knowledge of the directors. We think the decree must be reversed in these respects because the loans made prior to 1925 and the renewals of such loans appear to have resulted from bad judgment only, and the money obtained from tbe correspondent' banks was credited to tbe account of tbe bank on tbe books of tbe bank. In other words, tbe bank received tbe benefit of tbe money obtained from the correspondent banks, although that money was obtained by the use, in part, of forged collaterals.
"Without discussing in detail the various transactions through which the'bank sustained losses and for which the Bank Commissioner seeks to hold the directors liable, we announce our conclusion to be that the directors should be held liable only for the loans made after January 1,1925, to the cashier and his associates in their enterprises, including the overdrafts of the contractor incurred in the erection of the business building, and the three thousand dollars increase in the president’s indebtedness after the beginning of 1925. These losses would not have been sustained had the directors, in good faith and in the exercise of ordinary diligence, enforced the resolution adopted in January, 1925, which wlas intended to prevent just such loans being made. This liability should, of course, be credited with any collections made on account of these loans.
■ The decree of the court below will therefore be reversed, and the cause remanded with directions to enter a decree fixing the liability of the directors and ascertaining the amounts thereof,' in accordance with this opinion.' | [
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McHaney, J.
Appellants are the children and heirs at law of Minnie Maude Cooper by a former husband and Hubert Barnes is the administrator of her estate. Appellee is the administrator of the estate of his deceased father, D. O. Cooper, appellee and his brother being the children of said D. O. Cooper by a former marriage. On December 29, 1940, Minnie Maude Cooper shot and killed her then husband, D. O. Cooper. About 30 minutes later she committed suicide by shooting herself. No children were born of that union, but as stated-above, each left children by a former marriage.
At the time of his death, D. O. Cooper was engaged in the logging business and had been so engaged for some' considerable time. He owned some personal property, consisting of live stock, logging equipment and cash of a total value in excess of $2,000. His wife, Minnie Maude Cooper, was running a camp boarding house. Appellants claimed that their mother was the absolute owner of a one-half interest in the personal property of her husband and filed a claim for same as the heirs of their mother. They also claimed that said personal property ivas acquired as a result of the joint efforts of the husband and Avdfe, and that, upon the prior death of D. O. Cooper, their mother became immediately vested Avith a dower interest of one-third of the remaining one-half of said personal property of her husband, and to the additional sum of $450, statutory allowances, under §§ 80 and 86 of Pope’s Digest. Appellants also claim that appellee, as administrator of his father’s estate, should be charged with the following items:
Sale of personal property at auction..............................$1,573.55
Cash on hand...........................-................................................................ 619.88
One pump, pipe, tent and a note of Hamlin............... 166.00
One horse ...................................................................................................... 50.00
One item unaccounted for in inventory........................ 45.00
One-half of an item of $49 unaccounted for............ 24.50
Or a total of................................................................................................$2,478.93
Appellants’ claim, however, is $95 less than this amount, as they say the total amount chargeable to appellee is $2,383.93. Of this amount they say their mother owned one-half or $1,191.16 as her individual property. Also they claim, because she survived him, a dower interest in his half, or one-third of $1,191.96 which is $397.32, plus $450 as statutory allowances, making a total claim of $2,039.28. This amount deducted from the total estate of $2,383.93 leaves $344.65 with which to pay costs of administration and to distribute to appellee and his brother as their share of their father’s estate, thus leaving them everything the hen laid except the egg.
• Trial resulted in a finding that, upon the death of D. O. Cooper, his widow became entitled to one-third of his personal estate (found to be the sum of $2,247.93) which descended to appellants as her heirs upon her death. All other claims of appellants were disallowed, including the claim that she owned a one-half interest in said property. There is here a direct appeal and a cross-appeal by appellee from the order allowing a one-third interest to appellants as the dower interest of their mother.
Appellants first contend they should have a judgment against appellee for $2,039.28 by default because he did not file an answer or other pleading as a defense to their claims. No written pleading’ was necessary or proper. If they ever presented a claim to him as administrator, the record does not show it. They presented their claims to the court and he appeared and contested their rights so asserted.
Appellants also say they were entitled to the statutory allowances of $300 under § 80 and $150 under § 86 of Pope’s Digest. These allowances were never claimed by her as she was the widow for about 30 minutes only. It appears to us, as it did to the trial court, that these allowances are personal to the widow, in the absence of minor children, as here, and if the widow dies before the allowances are made to her, the right thereto terminates and does not pass to her heirs. Section 80 provides that the widow ‘ ‘ May retain the amount of three hundred dollars out of such personal property at its appraised valuation.” This necessarily contemplates the appointment of an administrator and an appraisement of the deceased husband’s property. After which time she “may retain” said sum “out of such personal property at its appraised valuation.” The right thereto is permissive, and, by § 87, “The widow shall apply for such property before it is distributed or sold, and not after,” and this section applies to the allowance under § 8G, as well as to that under § 80. The court, therefore, correctly disallowed these claims.
Another contention of appellants is that their mother was the owner absolutely of a one-half interest in said property, to which they succeeded as her heirs. The trial court found and held that she was not such owner, and we do not find any evidence in the record to overcome such finding.
The question that has given us the most concern is whether she, having shot and killed her husband under circumstances that may or may not have been murder, is entitled to dower in his property. This question is raised by the cross-appeal. In 26 C. J. S., p. 1055, § 4/1, the general rule is stated as follows: “According to the majority view, the operation of a statute of descent is not affected by the fact that the death of the intestate was caused by the heir apparent in order to obtain the inheritance at once, and therefore an heir who causes or procures the death of the intestate in order that he may inherit the estate at once is not disqualified from taking in the absence of a statute expressly disqualifying him. There is, however, a strong minority view to the contrary, based on the theory that a person should not profit from his own wrong; and it is said that this view displays a tendency to become the majority view. To meet the difficulties arising in such a case, several states have enacted valid statutes intended to prevent a person who has feloniously caused the death of decedent from inheriting or receiving any part of the estate of decedent; but such a statute must be strictly construed and in some situation is held not applicable. A statute disqualifying one who has been convicted of the murder of deceased does not apply in the absence of such conviction, as where there has been a conviction of manslaughter only, or the person who committed the homicide was insane at the time, or committed suicide shortly thereafter. Also, a statute prohibiting a person from -acquiring by descent or distribution any interest in the estate of another whom he has killed in order to obtain such interest is not operative by virtue of an unlawful homicide alone, but only where the killing was done in order to obtain the estate, or an interest therein, of the person killed.”
One of the cases cited in a footnote to support the statement that “A statute disqualifying one who has been convicted of the murder of deceased does not apply in the absence of such conviction, as where — the person who committed the homicide — committed suicide shortly thereafter,” is In re Tarlo’s Estate, 315 Pa. 321, 172 Atl. 139. Under a statute of that state, providing that no person who shall be finally “adjudged” guilty of murder in the first or second degree shall be entitled to inherit the estate of the person killed, it was held that the word “adjudged” meant the judgment of a court of competent jurisdiction to pass on the question of guilt in murder, and was the equivalent of convicted and sentenced; and that the “estate of father who fatally shot daughter and then committed suicide held not precluded from taking daughter’s estate by inheritance, since father had not been ‘adjudged’ guilty of murder within statute precluding inheritance. ’ ’ Headnote 1. The Pennsylvania statute is quite similar to ours, the latest being § 3 of Act 313 of 1939, which provides: “Whenever a spouse shall kill or slay his or her spouse and such killing or slaying would under the law constitute murder, either in the first or second degree, and he or she shall be convicted of murder for such killing or slaying, in either the first or second degree, the one' so convicted shall not be endowed in the real or personal estate of the decedent spouse, so killed or slain.” This section is almost an exact copy of § 1 of Act 190 of 1927, digested as § 4397 of Pope’s Digest. We are of the opinion that the word “convicted,” as used in said statute, means convicted and sentenced in a court of competent jurisdiction, the circuit court of the proper county. The probate-court, from which this appeal comes, would have no such .jurisdiction and it did not undertake to determine this question. Since Minnie Maude Cooper was not tried or convicted of murder for the killing of her husband, but committed suicide shortly thereafter, the above statute does not exclude her or her heirs from asserting dower in her husband’s property. In the case above cited, In re Tarlo’s Estate, three judges dissented from and one concurred in the majority opinion. The courts are very much divided on the question, but it appears the majority view supports the holding in said case, although it is stated in De Zotell v. Mut. Life Ins. Co., 60 S. D. 532, 245 N. W. 58, that the minority view displays a tendency to become the majority view. This last mentioned case was cited and quoted from with approval in our own recent case of Horn v. Cole, Administrator, 203 Ark. 361, 156 S. W. 2d 787. In that case Sarah Horn shot and killed her husband who held a policy of life insurance in the sum of $1,000, in which she was the named beneficiary. The insurance carrier brought an interpleader’s suit in the Pulaski chancery court, making her .and Cole, the administrator of his estate, parties, paying the money into court. The administrator answered that- the beneficiary, Sarah, had disqualified herself from receiving anything under the policy because she had wrongfully and unlawfully killed the insured, and prayed that the entire proceeds of the policy be paid to him as administrator. Sarah answered and denied her disqualification or that she had wrongfully or unlawfully killed the insured. . She also alleged that she was indicted, tried and acquitted of the offense of said killing in the Saline circuit court, and asked that she recover the proceeds. Trial resulted in a decree for Cole, administrator, and that “Sarah Horn shall take no part of the proceeds of said policy, either as beneficiary or as widow of Fred Horn.” We affirmed that decree, holding that the record made on the criminal charge was not admissible to show her guilt or innocence in the civil action involving her right to the proceeds of the policy, but the court trying the civil action would determine her guilt or innocence in so far as her right to the proceeds was concerned. And it was further held, to quote a headnote: ‘‘Public policy denies the right of a beneficiary who has murdered the insured to the proceeds of insurance policies on his life, appellant who had killed her husband could not take any part thereof as dower, since the same principle of public policy which precludes her from claiming directly under the insurance contract precludes her from claiming under the statute of descent and distribution.”
This holding was made apparently without reference to the statute above quoted, § 3 of Act 313 of 1939, and it may be sound as applied to the proceeds of insurance policies. All the courts hold that a sane beneficiary who unlawfully and feloniously kills the insured cannot recover as beneficiary. But the courts are divided as to whether the beneficiary, in such case, may share in the proceeds, which go to the estate, as heir or take dower as widow. As to the ordinary estate of a deceased spouse who was murdered by the other spouse who was convicted thereof, the legislature has said that such a spouse shall not be endowed. Having stated the conditions bn which dower will be denied, it follows that, such conditions excepted, the spouse will be endowed in the real and personal property of the deceased spouse.
The case will, therefore, be affirmed on the cross-appeal. | [
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McHaney, J.
Appellants, S. L. Adams and Cf. A. Lindsey, are partners, doing business under the firm name of Adams & Lindsey, and brought a suit in the common pleas court of Ashley County against appellee io recover for certain losses in weights of cotton. The complaint was made more definite and certain on appellee’s motion, and, on his demurrer to the complaint being overruled, appellee filed an answer and cross-complaint. On a trial of the case on November 16, 1926, the common pleas court entered judgment in f-avor of appellants in the sum of $307.14 on their complaint, and in favor of appellee on Ids cross-complaint against appellant in the isnm of $288.82, from which both parties prayed and were granted an appeal to the Ashley Circuit Court. Within the time alloAved by law appellants filed with the clerk of the common pleas court an affidavit for appeal to the. circuit court, and the clerk made an indorsement thereon, allowing' the appeal. No appeal bond was filed by appellants, and no supersedeas Avas issued staying the judgment of appellee on his cross-complaint. Also, within the time, the appellee perfected his appeal to the circuit court by filing his notice of appeal, affidavit for appeal and appeal bond, but no question is raised as to the regularity of his appeal. On January 17, 1927, that being a day of the regular term of the Ashley Circuit Court, appellee filed a motion to dismiss the appeal of the appellants, for the reason that no appeal bond had been filed, as required by the act creating the Ashley Court of Common Pleas, and same was submitted to the court on said day, whereupon the court sustained the motion to dismiss the appeal of appellants, and a judg'ment was entered, dismissing said appeal, for the' reason that the court held that the filing of the bond was essential to give the circuit court jurisdiction on appeal from the court of common pleas. From the .judgment of dismissal appellants have appealed to this court.
Only one question is presented by this appeal, and that is, Avhetlier the act creating the Ashley County Court of Common Pleas, .same being act No. 339 of the (leneral Assembly of 1915, pago 1438 of said Acts, requires the giving of a bond as a prerequisite to the right of appeal, and this is to be determined,by á construction of § 9 of said act, which reads as folloAvs :"
■ ‘ ‘ That any person aggrieved by any final judgment rendered by said court, except as to judgment of dismissal for want of prosecution, may take an appeal to the circuit court, within thirty days after rendition of said judgment, by making a good and sufficient bond, to be approved by the clerk, and complying with the law otherwise as to appeal from justices’ courts to the circuit court. Provided, that the affidavit for appeal may be made by the party, his agent or attorney; and provided further, that, if the court has adjourned, the appeal shall be allowed by the clerk, when notice of the appeal, in such case, shall be served upon the appellee, his agent or attorney of record, but, if allowed by the court in open session, upon motion of the appellant, and the filing of the affidavit and bond before the final adjournment of the court, no further notice to the adverse party shall be necessary.”
We do not think it was the intention of the Legislature, by enacting said act, to make it impossible for the poor and unfortunate, or persons who may be parties to actions in their fiduciary capacities, such as executors, administrators, guardians, etc., to take an appeal to the circuit court from an adverse judgment of the court of common pleas, which is the necessary effect of said act, if the construction placed upon it by the circuit court is correct. If an appeal from such court can only be taken by giving a supersedeas bond, then á large class of persons will be denied the right of appeal. The con-struction placed on the act by the circuit court would require an arbitrary classification of litigants, one of whom could appeal, being able to make the appeal bond, and the other of whom, on account of poverty or fiduciary capacity, oouíd not, the fiduciary class not being required to -give a bond under the general law 'and many holdings of this court, whereas, on the other hand, the rich or well-to-do' could appeal from aln adverse decision of such court, but the poor could not. Therefore we hold that the provision of this statute requiring a bond is directory merely, and that the failure to give the bond does not deprive the circuit court of jurisdiction on appeal.
This court had this same statute under consideration in the case of Brown v. Kirkland, 156 Ark. 542, 246 S. W. 851, but the question now presented was not involved there.
By following the procedure for appeals allowed from the courts of justices of the peace, appellant could have appealed without giving the bond, but, of course, his failure to supersede the judgment against him would not stay execution. For the error in sustaining the motion to dismiss and in dismissing the appeal, the cause will be reversed and remanded, with directions to overrule said motion, and for further proceedings not inconsistent with this opinion. | [
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Mehaeey, J.
Tke appellant is the Commissioner of the Department of Labor of Arkansas, and the other appellants are the members of the merit system council and the merit system supervisor. The appellee was the qualified director of the employment security division of the department of labor of Arkansas.
The appellee was discharged by the Commissioner of Labor and appealed to the merit system council from said dismissal. The merit system council, after a hearing-, approved the action of the labor commissioner and ordered that his dismissal be permanent.
Appellee Collins then applied to one of the judges of the Pulaski circuit court for a writ of certiorari to bring the proceedings of the merit system council before that court for review, and on the hearing before the circuit court a judgment was rendered quashing the order of the merit system council, and an appeal has been duly .prosecuted to this court.
On the hearing of the cause before the circuit court the record as made before the merit system council, including- all the oral testimony adduced, was considered and parties permitted to introduce additional testimony.
The charges against Collins, as stated by him in his brief, are as follows:
“(1) A poker game has been openly conducted in the offices of the agency for many months, during the noon hour, in which a number of employees of the agency participated. .
“(2) The director was a patron of bookie agents and bet on horse races; that bets were generally placed by the director and employees of the agency during business hours; one Delbert Plant, a representative of the bookie agent, called regularly on the employees of the agency to solicit bets on horse races.
“ (3) The merit system rules have been ignored in many instances, promotions have been made without regard to qualifications or efficiency, resulting in general dissatisfaction.
“ (4) The director has raised the salary of favorites in preference to capable employees who should have been given consideration.
“(5) The plaintiff has unlawfully remitted penalties.
“ (6) That plaintiff has been guilty of employer discrimination.”
John I. Hogue, who was supervisor of the Arkansas Merit System Council, testified in substance that the employment security division of the Department of Labor, the state Department of Public Welfare and the State Board of Health are agencies that the merit system applies to, and agencies to which the federal government contributes expenses and personnel. Witness became connected with the merit system on February 15, 1940. The council at that time had certain rules and regulations governing the operation of the district. A copy of the rules and regulations was then introduced in evidence. Witness does not know of any promotions or employment in the security division that have not been in keeping with the rules; that is, no formal promotions. A list of promotions was introduced in evidence, by agreement. Witness said it is not in keeping with the rules and regulations of the merit system to promote a person to a position that carries with it an increase in salary and at the same time require that person to divide the increase in salary with someone else who does not receive a promotion. If such a case had been called to witness’ attention, he would have had to take an exception to it; does not recall when Wahlgreen and Neighbors were promoted or that there was any information coming to him as to an agreement whereby the one receiving a promotion and increase in salary was to turn over a portion of the increase to the other; Inasmuch as this practice of dividing the increase in salary of the one promoted is not in keeping with the merit system, it would probably have a tendency to destroy the merit system. If by agreement the party promoted is required to share the raise with someone else, then false records are made. The Commissioner of Labor is the one who actually appoints, promotes and raises salaries.
Ben C. Shipp, chief of the benefits section of the employment security division, testified that he had been with the agency all the time that the appellee had been director; knew that a poker game was carried on during the noon hour on the second floor of the agency; those participating in the game were employees of the agency, and the game was carried on openly; could have been seen by anyone on the second floor; during the game there would be onlookers; witness participated in the game once or twice; it was generally understood by the employees that appellee was a patron of tlie bookies and bet on the horse races; witness had seen racing forms on appellee’s desk quite frequently during business hours. This witness also testified about Mrs. Wahlgreen and Mrs. Neighbors; that one of them received a promotion on condition that she split the increase in salary with the other; the bookie agent was frequently in conversation with Hicks.
A number of witnesses testified about the poker game and the betting on horse races, and the division of the increase in salary.
Witness Horace Wilson testified that he had been in appellee’s office many times during business hours and had seen and heard Hicks and appellee discussing the races and studying racing forms. The poker games stopped shortly after the first of the year, but betting on horses continued, although not quite so openly. Witness had seen appellee and Hicks in appellee’s office discussing racing and racing cards after the notice was posted prohibiting gambling; these discussions took place during business hours.
Randall Falk testified that in view of the circumstances he could not imagine that the appellee was not cognizant of racing forms being kept on the desk of his secretary.
Another witness, Marvin E. Clark, testified about the bookie agent and having seen racing sheets on the desk of appellee’s secretary. He also testified that there was a general feeling among the employees that promotions were given to undeserving employees, and such views were the rule, and not the exception.
H. L. Lambert, cashier of the agency, testified that he has seen poker games in progress on the second floor a number of times, and had seen Delbert Plant, a bookie agent, in the offices of the agency almost daily for months.
C. W. Cobb, tabulating supervisor, testified that he had frequently seen poker games in progress; almost a daily occurrence; had seen the bookie agent with Hicks and racing sheets on Hicks’ desk and had seen them on appellee’s desk during business hours. The poker playing and horse race betting was carried on for about two months and the betting continued throughout the season at Hot Springs.
H. O. Arendt, an employee of the agency, testified that favoritism was in fact shown.
Marvin Clark, principal clerk in the contributions section, testified among other things that upon instruction from the appellee an employer received credit for taxes which he supposedly paid to the agency. A check for nearly $1,000 was given the agency, which enabled the employer to receive credit, and the check was returned unpaid. Appellee instructed that the check of the employer be held up until April 30, 1941. In the meantime the agency had certified that the employer had paid his taxes, when as a matter of fact such tax had not been paid and had not been paid a.t the time the witness testified.
There is evidence of witnesses who did not see the gambling and did not know of it, and also some evidence contradicting the evidence above set forth, but we are of opinion that there was substantial evidence to support the finding of the council.
The case of Hall v. Bledsoe, 126 Ark. 125, 189 S. W. 1041, construes the statute and reviews the authorities on the subject of certiorari. It would serve no useful purpose to again review those authorities, since there has been no change in the statute (see § 2865, et seq., Pope’s Digest) and none in the decisions of this court since the decision in that case, in which the court said: “Again, it is very plainly settled, we think, that the writ of certiorari is available for the purpose of giving opportunity to review the decision of the board in removing an officer pursuant to the terms of the statute.” The following cases were cited in support of the above statement of the law: Pine Bluff Water & Light Co. v. City of Pine Bluff, 62 Ark. 196, 35 S. W. 227; State, ex rel., v. Railroad Commission, 109 Ark. 100, 158 S. W. 1076.
The court in tlie Bledsoe case also said: “It lias been expressly bold by this court that the scope of the writ of certiorari at common law is not enlarged b}r the statutes of this state on that subject.” Citing authorities.
In the Bledsoe case, the court quoted with approval from the case of Merchants & Planters Bank v. Fitzgerald, 61 Ark. 605, 33 S. W. 1064, stating: “According to the well-settled practice in this state the writ of certiorari can be used by the circuit court in the exercise of its appellate power and superintending control over inferior courts in the following classes of cases: (1) Where the tribunal to which it is issued has exceeded its jurisdiction; (2) where the party applying for it had the right to appeal, but lost it through no fault of his oivn; and (3) in cases where the superintending control over a tribunal which has proceeded illegally, and no other mode has been provided for directly reviewing its proceedings. But it cannot be used as a substitute for an appeal or writ of error, for the mere correction of errors or irregularities in the proceedings of inferior courts.”
On hearing the writ, the court does not proceed de novo and try the case as if it had never been heard in the inferior court. The office of the writ is merely to review the errors of law, one of which may be the legal sufficiency of the evidence. As the court said in the Bledsoe case: “for the purpose of testing out that question the circuit court is, by the statute, empowered to hear evidence de hors the record in order to ascertain what evidence was heard by the inferior tribunal, and to determine whether or not the evidence was legally sufficient to sustain the judgment of that tribunal.”
All of the evidence has been accurately preserved, and the question here is whether the council acted arbitrarily and without legally sufficient evidence. We have set out sufficient evidence to show that there was substantial evidence upon which the council based its finding, and neither the circuit court nor this court has any authority to pass on the question of the preponderance of the evidence.
As said in the Bledsoe case: “We are not called on to decide primarily whether or not the decision of the board was correct. The lawmakers have placed that authority in the board of control, and it would be clearly an encroachment by the courts upon the authority of another department of government to undertake to substitute the judgment of the judges for that of the members of the tribunal vested with authority to manage the institutions of the state and to appoint and remove those who are placed in charge. When all the testimony in the case is considered and viewed in the strongest light to which it is susceptible in support of the board’s findings, it cannot be said that there is an entire absence of evidence of a substantial nature tending to establish the charge of inattention and neglect of duty on the part of the superintendent. This being true, it becomes the duty of the courts, upon well-settled principles of law, to leave undisturbed the action of the tribunal especially created by the lawmakers to pass upon those questions. Any other view would make the board of control a mere conduit through which a decision on the removal of an unfaithful or inefficient superintendent would be passed up to the courts instead of leaving the matter where the lawmakers have placed it, in the hands of the board. ’ ’
In the Bledsoe case there was a dissenting opinion written by the late Judge Hart which was concurred in by the late Judge Wood. In that opinion it is said: “Of course I do not think the circuit court should weigh the evidence to decide where the preponderance lies, but I think the finding of the board is subject to review if there is no evidence to reasonably support the charges from any fair viewpoint.” It seems, therefore, that under the principles announced in the dissenting opinion, we do not decide where the preponderance lies, but it is subject to review if there is no evidence to reasonably support the charges from a fair viewpoint.
There were many persons employed by the agency and, of course, it would be difficult for the director to know everything that occurred among so many employees; but there is substantial evidence to the effect that there was gambling going on, both poker games and horse race betting, and the evidence shows that these things were carried on in snch a manner that the director, if attending to his duties, would be bound to have knowledge of them. We do not judge the weight of this evidence, however, for it is a matter for the council.
Having reached the conclusion that there was sufficient evidence to justify the action of the council, it follows that the circuit court erred in quashing the order.
The judgment is, therefore, reversed, and the writ of certiorari dismissed. | [
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McHaney, J.
Prior to January 22, 1926, the People’s Bank of Ozark was a banking corporation under the laws of Arkansas. On that date its doors were closed and its affairs taken over by the State Banking Department for liquidation as an insolvent institution.' L. L. Ford was its president, J. T. Greer vice president, and Finis E. Stockton its cashier and active officer. Like too many small banks, its business was very largely intrusted to and its destiny largely controlled by one man — its cashier, Finis E. Stockton.
Appellant is a national banking corporation of St. Louis, with Mr. W. O. Johnson as its vice president and cashier. Johnson, being a friend and acquaintance of Stockton of about ten years’ standing, solicited the account of the People’s Bank, through Stockton, for appellant. As a result thereof Stockton went to St. Louis in August, 1925’, and, on the 25th, opened an account with appellant, by rediscounting to it notes of customers held by his bank, and receiving a credit of $19,733.55. Said notes were indorsed, “People’s Bank of Ozark, F. E. Stockton, Cashier.” These notes are not involved in this controversy, as they were all thereafter taken up by the People’s Bank before failure, bufare mentioned to show the history of the whole matter.
On November 30, 1925, Mr. Johnson, for appellant, wrote Stockton in part as follows:
“Finis, I have been thinking more about handling your entire St. Louis business, and in this connection wish to say that, if you still have bills payable, we would be more than pleased to take this up and carry it for you, and with the view of taking care of your needs for the coming year. If you would be interested in figuring on the account along this line I will be glad to run down and see you, and feel quite confident that it can be arranged in such a way as would be very agreeable and satisfactory to you, and then, too, in doing business with some one you know it is worth something to feel that when you are in need of an accommodation you' can know where to go for it. ’ •
“I will be glad to have you think this matter over and advise me, and, if you are interested, will be a pleasure to me to run down and pay you a visit and line the account up.
“Awaiting your reply with the assurance that it is a pleasure to us when we can be of service to you, and with kindest personal regards, I am,
“Yours very truly,
“Vice-Pres. & Cashier.”
On December 8,1925, Stockton replied as follows:
“Dear Will: I was glad to get your letter, and had been thinking along the same line myself. Things have been coming slow, but it is going to come out all right. I had rather come up and see you, but it will be after the first of the year before I can come. I am sending you a little bunch of notes that I wish you would handle like you did the other ones.
“I am willing to give you the whole St. Louis a/c after the first of the year. We still have $30,000 bills payable, $15,000 in Fort Smith and $15,000 in St. Louis.
“I am checking on you for part of this, and if you cannot handle this $10,051.25 for sixty, give me credit for it temporary, and I will fix it as you wish. I want to see you ¿nd go over the whole proposition with you. There would be a personal friendship about doing business with you that would be worth while. We will take up the other customer notes you have soon. This list of notes is some that I have renewed the last few days, and are on some of our best customers.”
Appellant accepted these notes, rediscounted them for 60 days at 8 per cent, and credited the People’s Bank with the proceeds, $9,883.73, on December 10, 1925. On January 2, 1926, appellant rediscounted notes for the People’s Bank of the face value of $30,882.52, deducting the discount at 8 per cent, for 30 days and crediting its account with the balance. On January 14 and 16 like rediscounts and credits were made on notes aggregating $10,171.95 and $36,075.90, respectively, the credits being $10,104.14 and $35,594.90, respectively. The People’s Bank did not execute notes to appellant and deposit its customers ’ notes as collateral, but rediscounted bills receivable for 30 or 60 days at 8 per cent., with an agreement to take them up at that time. As a result of all these transactions, appellant had on hand, at the time of the failure of the People’s Bank, paper of the face value of $69,925.72, of which $36,779.51 in notes were indorsed “without recourse,” and $33,146.21 in notes bearing the unqualified indorsement of the People’s Bank. During’ all this time the People’s Bank, by its cashier or assistant cashier, was checking out the funds to its credit in appellant bank in the usual course of business and for the uses and purposes of the bank, and on January 22 the last check was cashed, which resulted in an overdraft on appellant’s books of $2,938.67.
When this account was opened in August, 1925, Stockton told Johnson he had authority so to do by virtue of a resolution of the board passed in February, 1925. This resolution is as f ollows:
‘ ‘ Resolved, that the president, vice president, cashier and assistant cashier are, and each of them is, hereby authorized to effect loans from time to time in behalf of this bank from the National City Bank of St. Louis, Missouri (the proceeds of such loans to be credited this bank by National City Bank on its books), and to renew or extend the same from time to time; and for such loans (and any and all extensions or renewals thereof) to make, execute- and deliver the promissory notes of this bank, and to pledge as collateral security for such loans (and any and all extensions or renewals thereof) any of the bonds, stocks, bills receivable, bills of exchange or other securities of this bank, and that such officers are also respectively authorized'to rediscount, from time to time, Avith the National City Bank of St. Louis for this bank any of the bills receivable, bills of exchange and acceptances held and owned by this bank, and deliver any collateral securing the same, respectively; and may secure such rediscounted paper in the manner above provided for securing loans made by the National City Bank of St. Louis to this bank on its notes or'otherwise. The above resolution was passed, and includes all our correspondents. ’ ’
This resolution appears in the minute-book of the People’s Bank in connection with the minutes of a meeting of the board of February 3, 1925. The president of bank, L. L. Ford, says that he did not sign the resolution, or the minutes — that his name Avas signed by Stockton without his authority — 'but that he attended the meeting on that date, and that “we passed a resolution like that.” It is admitted that, acting under the authority of the above resolution, the People’s Bank borrowed money from the National City Bank of St. Louis, the Merchants’ National Bank of Fort Smith, the Bankers’ Trust Company of Little Rook, and rediscounted the notes heretofore set out to appellant, with all of which Mr. Ford was cognizant, except the dealings with appellant.
After the People’s Bank was taken over by the Bank Commissioner, appellant presented its claim to the liquidating agent, exhibiting said notes, for the full amount thereof, with interest, which was disallowed, and the court then made an order directing appellant to deliver same to the liquidating agent, to be held by him in a separate account pending a final hearing by the court, and this order was complied with by appellant. Thereafter it brought this action to recover possession of said notes and for the allowance of its claim to the extent of the notes bearing the open indorsement of the People’s Bank.- On a hearing the court found “that the plaintiff (appellant) took from Finis E. Stockton, cashier of the People’s Bank, in the form of rediscounts, notes of the People’s Bank,” etc., describing the dates and amounts rediscounted and credited, as already set out. And further, “that the amounts so credited to the People’s Bank by the plaintiff, in its account with it, were all drawn out from the plaintiff bank by Finis E. Stockton, as cashier, prior to the failure of the People’s Bank.” The court further found that the cashier did not have authority from the board of directors to “rediscount said notes,” and that appellant was not an innocent purchaser thereof, and thereupon entered its decree denying the relief prayed, from which comes this appeal.
1. We are of the opinion that the resolution of February 3, 1925, was sufficiently established to justify its admission and consideration by the court. It is true that it is a typewritten sheet attached by a clip to page 22 of the minute-book containing the minutes of that date, and that the name of the president was affixed by Stockton. That fact, of course, did not add to its evidentiary value, neither did it destroy it, if, in fact, it is the genuine action of the board. If the board in fact passed this resolution, or one like it, as it did, according to Mr. Ford, president, then, whether it was properly attested or not could make no possible difference, as the attestation is merely evidence of the action taken by the board. The minute-boolc of a corporation, when identified, is competent evidence as to all recitals contained therein, and, even though unsigned, the minutes may be used to prove what took place at the meeting, and that a resolution was passed thereat. Cook on -Corp., 8 ed., vol. 3, p. 2967. Of course the corporation would not be bound by forgéd, “false and simulated entries thereon, unless, knowing them to be such, they have neglected to correct them, and some innocent third person has relied thereon to his prejudice.” 7 R. C. L., p. 155. But, as stated by the same authority on the same page, “when a corporation seeks to destroy the effect of entries on its books, which purport to be regular records of the proceedings of its board of .directors or stockholders, it should offer for that purpose testimony of a more conclusive character than such as merely creates a suspicion that there was an irregularity in the manner in which the books were kept.” Not only did the directors not deny the validity of the resolution of February 3, but the president, Mr. Ford, virtually admitted that it was the genuine action of the board, although he did not sign it, and that it was the only authority by which money was borrowed or notes rediscounted from the three other banks, as there was no other-such resolution in the -minute-book. The minutes of the next meeting show that the minutes of this meeting were read and approved. We therefore conclude that this resolution was the genuine action of the board.
2. The next inquiry is, whether it was authority to rediscount these notes to appellant, and whether it met the requirements of the Banking Act, § 700, -C. & M. Dig., as amended by § 18 of act 627 of 1923, p. 515. It will be noticed that the authority conferred in the body of the resolution was to borrow money and pledge its securities, and rediscount its bills receivable from and with the National City Bank of St. Louis. Written at the bottom of the page after the resolution is: “The above resolution was passed, and includes all our correspondents.” Appellant offered to prove by Ralph Floyd, assistant cashier, that copies of this resolution were made and sent to the other banks, from which they obtained loans, with the names of such other banks inserted in the place of the National City Bank, to show the authority in the premises, but the court refused to permit such testimony. We think this was competent testimony, as it showed that the board regarded this resolution as broad enough to cover the borrowing of money from banks other than the National City of St. Louis. While appellant was not one of its correspondents at the time the resolution was passed, it did become such, and all the transactions occurred within one year from the date thereof. Neither was a copy of this resolution presented to appellant, and it did not see it until after the failure, yet Stockton assured Mr. Johnson that he had the authority by virtue of this resolution, and we think he did. Section 18 of said act 627 of 1923 reads as follows:
“That § 34 of act 113 of the Acts of the General Assembly of 1913 be so amended as to read as follows:
“ ‘All pledges or rediscounts made by any bank organized under the laws of this State, as collateral security for money borrowed, of any of the bills, notes, bonds or other assets owned or held by it, without the prior express authority reflected in the minutes in each instance, or for not more than one year of its board of directors, as also all such pledges or rediscounts made from and after the date when this amendment to this act takes effect, the face value of the principal whereof exceeds, at the time when the same are made, in the aggregate, of all of the collateral of said bank then securing the said loan, one and one-half times the principal sum of the said loan, to the extent of said excess shall be in all respects null and void, and the said bank may recover the same or the actual value of such parts thereof as have been disposed of by the lender; provided, that the said margin of said collateral over the amount of said loan may he increased upon the prior written consent of the Bank Commissioner in each instance.”
The above statute is almost, if not entirely, unintelligible. We have examined the original bill which became act 627, as well as the enrolled copy thereof, and find same correctly copied in the printed Acts. Section 700 of C. & M. Digest, which this section amends, takes the place of, and therefore repeals, reads as follows:
“The president, cashier or other officer or employee shall have no power to indorse, sell, pledge or hypothecate any notes, bonds or other obligations received by said corporation for any money loaned, until such power and authority shall have been given' such president, cashier or other officer or employee by the board of directors, a written record of which proceeding shall first have been made; and all acts of indorsing, selling, pledging and hypothecating done by said president, cashier or other officer or employee, without the authority from the board of directors, shall be null and void.”
We hesitate to believe that it was the intention of the Legislature to repeal this wholesome statute, yet it would appear from the language of said § 18 that the only thing made null and void is the depositing or pledging of collateral to secure a loan in excess of “one and one-half times the principal sum of said loan,” and then only to the extent of the excess. But we are of the opinion that it may be inferred from the language in the first part of the section that pledges of collateral security for loans or rediscounts of the bank’s paper are prohibited and made void without the prior action of the board authorizing it, and we so hold, regardless of the loose manner in which said section is drawn. And we further hold that the act does not require this “express authority reflected in the minutes in each instance” that a loan or rediscount is consummated, but that the resolution may be drawn to cover all loans or rediscounts to be made during a period of one year, as this requirement is in the alternative in the act. This section was enacted for the benefit of the bank, its stockholders and depositors, to prevent, as far as possible, the officers from making way with the assets of the bank for their private purposes. We think it is conclusively shown, and the chancellor so found, that all the funds realized from these rediscounts were properly checked out by an officer of the People’s Bank for the uses and benefit of said bank, including the amount of the overdraft, $2,938.67. We therefore conclude that this resolution of February 3, 1925, was sufficient authority to authorize Stockton to rediscount the notes in question,'and that it was, to say the least, a substantial compliance with said § 18 of act 627 of the Acts of 1923.
3. We think it necessarily follows, from the conclusions heretofore reached, that appellant was an innocent purchaser of said notes, and acquired same in good faith before maturity and without any notice of any defenses thereto. It is not claimed that there are any defenses to the notes by the makers thereof, but the principal contention made by counsel for appellee is that the notes were negotiated without authority from the board, which we have already decided adversely to appellee’s contention. The fact that Stockton drew a draft on the bank in August, prior to having’ arranged for the negotiation or rediscount of the first notes, is not sufficient to put appellant on notice that Stockton was without authority. And the fact that they did not demand a certified copy of the resolution of February 3, 1925, before accepting any of the rediscounts from Stockton, is explained by Mr. Johnson’s confidence in Stockton, who told him sucia a resolution was passed, and by his desire to get the account of the People’s Bank. Good business judgment would probably suggest that to have done so would .have been the better course to pursue, but the law does not require the discounting bank to obtaiaa a copy of such resolution, but only that such resolution shall have been passed by the borrowing baiak.
We coaaclude therefore that appellant is entitled to the notes which it delivered to the Baiak Commissioner, and which are yet in his hands, as well as all money collected by the Bank Commissioner thereon, if any, and that the Bank Commissioner, or his agent in charge thereof, should surrender and deliver up to the appellant all such money aforesaid.
The judgment of the chancery court is therefore reversed, and remanded with directions to enter a decree in accordance with this opinion. It is so ordered. | [
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Hart, C. J.,
(after stating the facts). It is first contended by counsel for the plaintiff that the decree should be reversed because some of the items allowed by the chancellor were not embraced in the cross-complaint of the defendant. We do not deem it necessary to discuss this contention at length. As we have already seen, the plaintiff brought this suit in equity against the defendant for an accounting of their partnership in running a dairy. The undisputed evidence shows that they were to divide the profits equally. The plaintiff was to furnish the cows, equipment and dairy farm; and the defendant was to manage the dairy, and to furnish all the labor and feed. It is well settled in the law of partnership that, in a suit for an accounting and settlement of the partnership affairs, the jurisdiction of equity is practically exclusive. Short v. Thompson, 170 Ark. 931, 282 S. W. 14. All the items embraced in the account of the master and found by the chancellor were items growing out of the partnership. Hence they were necessarily included in rendering an account of the partnership affairs. They grew out of the partnership business, and were necessary in the adjustment of the partnership accounts. Hence it does not make any difference whether they were specifically pleaded or not.
One of the principal items relied upon by the plaintiff for a. reversal of the decree was that the chancellor erroneously allowed the defendant $24 for one-half of the manure, hauled away from the dairy farm. As we have already seen, the dairy was -conducted upon the farm of the .plaintiff, and the proceeds were to be divided equally between the partners. Tankersley testified that he specifically reserved the manure. Patterson testified that nothing was said about the manure, and that it was necessary to have it hauled away from the dairy farm so that the dairy could be successfully and practically operated. The evidence for the defendant shows that 64 loads of manure were hauled away from the dairy farm by a tenant of the plaintiff, and spread on his farm. It was shown by the testimony of another witness that the owner of a dairy in the same vicinity had paid seventy-five cents a load to have manure hauled on his land. There were 64 loads hauled away from the dairy farm and spread over the land of the plaintiff which was cultivated by one of his tenants. This would have amounted to $48, and the chancellor was justified in finding that the defendant was entitled to a credit of $24 for one-half of the manure hauled away from the dairy farm as being the value of hauling the manure from the dairy farm and spreading it upon the farm of the 'plaintiff.
The court also allowed Patterson the sum of $32, which was for his services in repairing a house and fence belonging to the plaintiff. According to the testimony of the defendant, he was required to make these repairs,, and they were necessary in order to preserve the property and to keep it fit for use in the partnership business. Hence it cannot be said that the findings of the chancellor on these items were against the preponderance of the evidence.
We do not deem it necessary to set out or discuss in detail the various items allowed to the respective parties by the chancellor. They were very small amounts, and in no instance can it be said that the finding of the chancellor was against the weight of the evidence. The plaintiff commenced this action against the defendant on the theory that the defendant had not accounted to him in the weekly settlements for an equal division of the profits of operating the dáiry which were in his hands. The plaintiff, however, was unable to furnish proof in support of his complaint, and for that reason failed to maintain his suit.
The findings of fact made by the chancellor cannot be said to be against the weight of the evidence; and, according’ to our settled rule in such cases, the decree must be affirmed. | [
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McHaney, J.
There is a very large record in this case, more than 1,100 pages, in two volumes. It will therefore be impossible to do more than state in a general way the substance of this controversy and the conclusions of law to be drawn therefrom, and at the same time confine this opinion within reasonable limits.
Appellants, Abraham Edlin and his son, J. Kenneth Edlin, are residents of Chicago, and engaged in the real estate brokerage business, while appellee is a resident of Indianapolis, Indiana, and engaged in the real estate brokerage business there, and has been for the past fourteen years. It appears from the evidence that he is a man in good standing’ with financial institutions in his own city, but of comparatively small means. In May, 1925, appellee and appellant, Kenneth Edlin, associated themselves together for the purpose of engaging in the real estate business for their joint benefit, each to share the profits and losses therefrom equally. After thus associating themselves, they engaged jointly in certain real estate transactions, the first being the purchase by them of an undivided one-half interest in a farm in Fayette County, Indiana, in which appellee already owned the other undivided one-half interest. In aqquiring the outstanding undivided one-half interest appellee paid $2,500 cash, and Kenneth Edlin executed and delivered his note for the other $2,500, indorsed by appellee, which note has never been paid. After thus acquiring the equity in said farm, they traded it for a Chicago' apartment building’, known as the James Court, assuming a $200,000 mortgage thereon, and took the title thereto in the name of one Frank J. Smidl, a straw-man, who was the chauffeur of appellant, Abraham; Edlin. They thereafter made diligent efforts to sell or exchange the James Court property, and in other real estate efforts traveled extensively through Indiana, Illinois, Louisiana, Mississippi and Arkansas. They finally traded the James’ Court property for a plantation in Louisiana of 5,500 acres, together with all the personal property, live stock and crops on said plantation, subject to a mortgage of $35,000, and, as a part of the consideration, were given a third mortgage on the James Court property in the sum of $12,500. In their attempts to dispose of the James Court property they negotiated with Harry Daley, of Hot Springs, son of James E. Daley, the owner of a long-term lease on the Broadway Hotel in Hot Springs, for the exchange of this property for the lease on the hotel, both going to Hot Springs and negotiating personally with Harry Daley there. Daley interested his father in this matter, and they went to Chicago, at the invitation of Kenneth Edlin and Moser, to investigate the James Court property. In the meantime they had exchanged same for the Louisiana plantation, and they undertook to interest Mr. Daley in other property in Chicago, and he finally agreed to exchange his hotel property, free from any liens or incumbrances thereon, for a. certain property in Chicago, known in the record as the "Croninger property, subject to an incumbrance of $200,000.
On the 15th day of August, 1925, they entered into a written contract with James E. Daley for this exchange of property, the contract being signed by James E. Daley and the same Frank J. Smidl, the straw-man for Moser and Kenneth Edlin. At the time this contract was entered into they had not acquired the Croninger property, so as to he able to effect an exchange, but, on August 18, three days after the execution of the contract by Daley and Smidl, they procured the execution of a contract by the owner of the Croninger property, by which he agreed to convey same to the said Smidl for $25,000 in cash, sub ject to outstanding incumbrances in the sum of $200,000, the cash consideration to be paid within ten days, or not later than August 28, and the whole deal to be consummated as of September 15, through the Chicago Title & Trust Company. In both of these contracts it is undisputed that Moser, and Edlin were the real parties in interest, and that 'Smidl held the naked legal title for their use and benefit. Appellant, Abraham Edlin, was thoroughly familiar with the two contracts above mentioned. Immediately after securing the contract on the Croninger property, Kenneth Edlin and Moser left for Hot Springs, stopping at the Broadway Hotel, for the purpose of securing a loan of $25,000 on the hotel property to enable them to pay the $25,000 cash called for in the contract for the Croninger property. On their arrival in Hot Springs, Kenneth Edlin attempted to negotiate this. loan. He applied to the Security Bank in Hot Springs for a loan of $30,000 to be secured'by a first mortgage on the Broadway Hotel property, but did not get any loan or the promise of one. He then applied to the Arkansas Trust Company for a loan of $30,000 with such security.
Up to this point there is no disagreement in the evidence, of a substantial nature, but here the parties differ as to what occurred, appellee stating that Kenneth reported to him that the Arkansas Trust Company would make a loan of $30,000, and that all that was necessary was to get the papers in shape, show a clear title to the Broadway property, execute the note and mortgage therefor, and thus consummate the deal for the exchange of such properties; while Kenneth Edlin testifies that he reported to Moser that the Arkansas Trust Company would make the loan provided their financial and moral responsibility was shown to be good, upon an investigation to be made by Mr. Henderson, the president of the trust company, and that they both then agreed that they would have no chance of securing the loan; that they then left Hot Springs without undertaking to secure the loan from any other bank there, although there were three- or four others, and returned to Chicag’o. "While in Hot Springs on this mission, and shortly before their departure for Chicago, Moser sent the following telegram to his wife in Indianapolis: “Deal financed. Fine. Leave here for Chicago tomorrow. Home Saturday some time. Mail Florida abstracts in my desk to me, Great Northern Hotel, Chicago, immediately. This matter same as completed. ’ ’
. They arrived in Chicago August 22, where a settlement was had with appellant, A. Edlin, relative to the James Court property, in which Moser was paid $3,352 as his share of the profits. Moser then returned to his home in Indianapolis, and shortly thereafter went to Louisiana and Mississippi in furtherance of their joint enterprises, leaving Kenneth Edlin in Chicago to close up the Broadway Hotel deal, and on the 2d or 3d of September was ’joined by Kenneth Edlin in the prosecution of their real estate work. Moser says the settlement relative to the James Court property was friendly, whereas appellants testify that appellee was very much dissatisfied with it, and became very angry, but finally accepted it. They both testify that A. Edlin asked them how the Hot Springs deal was getting along, and that they both told him it could not go through, as they had been unable to secure the loan of $30,000, and that A. Edlin, at that time, stated that he might take it over. A. Edlin says that they both told him that they were through with the deal, and that he went into it with the understanding that they were both out of it; that they gave it up because they were unable to finance the $25,-000 cash payment for the Croninger property. Either on the 22d or 23d of August, after Moser had gone, Kenneth Edlin communicated with Mr. Daley, who was then in Chicago, and informed him that the deal was going through, and asked him to take immediate steps for its consummation. He told Daley that he and Moser were partners in this and other matters. Upon receiving this advice, Daley telegraphed two parties in Houston, Texas, who were interested with him in the Broadway Hotel, to meet him at Hot Springs at once, and that he left immediately for Hot Springs, arriving there on the 24th, and that Kenneth Edlin arrived on the same train with him. He prepared a deed to be executed by the corporation holding the record title to the Broadway Hotel to James E. Daley, and another deed conveying the same property from Daley and wife to appellant, Abraham Edlin. Mr. Daley thought he was dealing with Kenneth Edlin and Moser all the time, that they were partners in this transaction, and that he executed the deed to A. Edlin at Kenneth Edlin’s suggestion. The deed from Daley and wife to A. Edlin had to be mailed to Mrs. Daley at Houston, Texas, for her signature and acknowledgment. It was acknowledged by her on the 27th day of August. On the 24th Kenneth Edlin received assurance from the trust company that they would make the loan for $30,000 on the hotel. He also had the title to the Broadway Hotel property examined. Both of the above mentioned deeds were dated August 25. He returned to Chicago, and was there on the 28th, when the $25,000 was due to be paid for the Croninger property. On August 27, Mr. Henderson, president of the Arkansas Trust Company, wrote the Drexel State Bank of Chicago, the following letter, and received the following reply thereto:
“Mr. J. Kenneth Edlin, of the brokerage firm of Abraham Edlin & Company of your city, is now in Hot Springs and is negotiating the purchase of a hotel here. In connection with the purchase he has made application to us for a loan of $30,000, which we are willing to advance. However, before doing so, we desire to obtain some definite information as to the financial responsibility of the firm and of Mr. Edlin, their business methods, etc. The title to the property will be taken in the name of Abraham Edlin, and he will execute the mortgage and note to us.
“We will very much appreciate it if you will give us whatever information you may have as to the Messrs. Edlin. Any information yon may furnish, us will be held in strict confidence, and we will be glad to reciprocate the favor at any time we can serve you. ’ ’
“August 31, 1925.
“Arkansas Trust Co.,
“Hot Springs National Park, Ark.
“Gentlemen: Attention Mr. Henderson.
“We are in receipt of your favor of the 27th inst., inquiring regarding Mr. J. Kenneth Edlin of the brokerage firm of Abraham Edlin & Co.
“In reply beg to say that we do not have an account under the name of J. Kenneth Edlin, but J. Y. Edlin has carried a small checking account with us. Mr. Abraham Edlin has banked with us since February, 1924, is carrying a good four-figure balance at the present time. Dealings satisfactory.
“Yours very truly,
“................................................................, Cashier.”
On the 28th day of August, after Kenneth had returned from Hot Springs, knowing that the loan would be made, Croninger came to the office of A. Edlin for his $25,000 cash payment. By agreement with A. Edlin, and on the payment by him of $1,000, the time was extended to pay the balance until a later day. Within the time the loan from the Arkansas Trust Company was consummated by Kenneth Edlin, in the name of A. Edlin, who signed the note and mortgage, and all' the papers were forwarded to the Chicago Title & Trust Company for the purpose of having it deliver all deeds, the money on the loan, and settle the transaction between all parties concerned, which was accomplished on September 15,1925.
On the back of Exhibit D to the deposition of A. Edlin, which is an application prepared by the Chicago Title & Trust Company, Frank J. Smidl on that day executed an order, indorsed thereon as follows: “Pay
amount payable to me to order of J. Kenneth Edlin.” Appellee testified that he had no knowledge of any change in their plan to have the title to the Broadway Hotel taken, in their joint names, or in the ñamé' of Smidl for their joint benefit, until the 9th day of September, when he was in the office of A. Edlin’s attorney, adjoining that of A. Edlin, where he saw a deed lying on the desk, conveying the Broadway Hotel to A. Edlin, and that he at that time objected, and insisted on his rights being protected in and to said property; that they had quite an angry discussion between them regarding the matter, and that at this meeting he was, for the first time, advised that it was the intention of appellants to exclude him from any interest in the deal. He thereafter instituted this action in the G-arland Chancery Court to recover his interest in the profits of this deal.
On March 2, 1927, the court entered an interlocutory decree in favor of appellee to an undivided one-half interest in and to the Broadway Hotel property, subject to the mortgage aforesaid, and divesting a one-half interest out of appellants, and investing same in appellee, and directing the execution of a conveyance thereof to appellee, in which decree the court retained jurisdiction to state an account between the parties for the rents and profits accruing' subsequent to October 1, 19*25. This decree was later made final, alnd, in addition, appellee was given judgment for $5,024.64 against appellants, for which a lien was fixed upon the property for the payment thereof. From these decrees this appeal is prosecuted.
The diligence of learned counsel on both sides, in the preparation of briefs and citation of authorities for our assistance in deciding this ease, is commendable. These briefs raise many questions we do not find it necessary to discuss or decide. We think the principal question is one of fact, that is, whether the relations existing between Kenneth Edlin arid appellee constituted a partnership, and whether, under the facts in this case, the primary object of the suit was to recover an interest in land, and, the agreement therefor not being in writing, would be barred by the statute of frauds, §§ 4862 and 4866 of O. & M. Digest, or whether a suit for the recovery of an interest in partnership profits, which would not be barred by the statute of frauds. We think a decided preponderance of the evidence shows that the parties entered upon a joint enterprise as partners, for the purpose of acquiring and reselling real estate for their mutual benefit, each to share equally in the profits, and that they are therefore partners in this particular deal; that they acquired the Croninger property in the name of Smidl with the view of trading it for the Broadway Hotel, which contract was also taken in the name of Smidl, and that Smidl held same as a trustee for the benefit of J. Kenneth Edlin and Moser; that Kenneth Edlin secured the loan of $30,000 from the Arkansas Trust Company in the name of A. Edlin without appellee’s. knowledge or consent, and, furthermore, took the title to the Broadway Hotel in the name of A. Edlin without the knowledge, consent, or even acquiescence of appellee, but through connivance with his father, and with a fraudulent intent to deprive appellee of any interest in the profits of the transaction. The proof showed the Broadway Hotel to 'be worth, on a conservative estimate, $100,000, which represented a net profit to them, after deducting the mortgage, of $70,000. This represented the profit, to the partnership in the whole transaction, by which they exchanged the Croninger for the Broadway property. It did not cost A. Edlin one penny. True, he advanced on the Croninger property $1,000 on August 28, but he got it all back on September 15, plus about $2,500 in cash on account of the excess loan from the Arkansas Trust Company over the cash payment on the Croninger property, and expenses. It is true that A. Edlin incurred some expenses, approximately $2,500, in getting the transaction closed, all of which was returned to him out of the loan. Upon delivery of the instruments aforesaid to Smidl, a resulting trust was created as against Smidl, in favor of Kenneth Edlin and Moser, and, if the deal had been finally consummated through Smidl, but for their use and benefit as contemplated, it is not even contended by appellants that the statute of frauds would be applicable, because a suit to enforce a resulting or constructive trust is specifically exempted from the statute of frauds.
We do not think that Moser abandoned his interest in the transaction, as contended by counsel for appellants, but, on the contrary, we are of the opinion that a preponderance of the evidence shows that he did not abandon, and that the taking- of the title to the property in the name of A. Edlin, under the circumstances in this case, constitutes a constructive trust, or trust ex maleficio, and that the statute of frauds has no application under such a situation. In Bray v. Timms, 162 Ark. 247-271, 258 S. W. 338, 345, it was held that parol evidence is admissible and competent under § 4868, C. & M. Digest, to establish a resulting or constructive trust, and said: “But the statute also wisely provides that, where any conveyance shall be made of any lands or tenements by which a trust or confidence may arise or result by implication of law, such trust or confidence shall not be affected by the above rule. See § 4868, C. & M. Digest. Were the rule otherwise, a statute which was intended to prevent fraud would, in many cases, be a potent instrument of fraud. ’ ’
The court in that case quoted from 1 Pomeroy’s Eq. Jur., § 155, as follows:
“The second great division of trusts, and the one which in this country especially affords the widest field for the jurisdiction of equity in granting its special remedies, so superior to mere recoveries of damages, embraces those which arise by operation of law from deeds, wills, contracts, acts or conduct of parties, without any express intention, and often without any intention, but always without any words of declaration or creation. They are of two specie's, ‘resulting’ and ‘constructive,’ which latter are sometimes called trusts ex maleficio; and both these 'Species are properly described by the generic term ‘implied trusts.’ Resulting trusts arise where the legal estate is disposed of or acquired, not fraudulently or in the violation of any fiduciary duty, but the intent, in theory of equity, appears or is inferred or assumed from the terms of the disposition, or from the accompanying facts and circumstances, that the beneficial interest is not to go with the legal title. In such case a trust results in favor of the person for whom the equitable interest is thus assumed to have been intended, and whom equity deems to be the real owner. * * * If one party obtains the legal title to property not only by fraud, or by violation of confidence or of the fiduciary relations, but in any other unconseientious manner, so that he cannot ' equitably retain the property which really belongs to another, equity carries out its theory of a double ownership, equitable and legal, by impressing a constructive trust upon the property in favor of the one who is in good conscience entitled to it, and who is considered in equity as the 'beneficial owner. ’ ’
In that case the authorities are collected and reviewed at length, and it was there said, again quoting from Mr. Pomeroy, that the law is well established that trusts ex maleficio will be declared “ whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentation, concealment, or other undue influence, duress, taking advantage of one’s weakness or necessities, or through any other similar means, or under any other similar circumstances, which render it unconseientious for the holder of the legal title to retain and enjoy the beneficial interests.” 3 Pomeroy’s Eq. Jur., § 1053. We therefore conclude on this point that A. Edlin holds the legal title to the Broadway Hotel property for the benefit of Moser and himself, or Moser and Kenneth Edlin.
Appellants rely upon the cases of Beebe v. Olentine, 97 Ark. 390, 134 S. W. 936, and O’Bryan v. Zuber, 168 Ark. 613, 271 S. W. 347, as authority preventing appellee from-recovering an interest in the Broadway Hotel, for the reason that it is a suit to recover an interest in land or real estate on an oral agreement, which is prohibited 'by the statute of frauds. We do not think these cases are authorities in point here. In the Olentine ease, a partnership agreement for the purchase and resale of lands was involved, but the lands had been sold at a profit, and the court was dealing with money, and not with land. In O’Bryan v. Zuber, a partnership existed for- the purpose of operating* an orchard and dividing the profits. Zuber contended that he was entitled to a one-half interest in the land, which was to be paid for out of the profits of operating the orchard. He contributed nothing to the purchase of the land, and relied upon a parol agreement with O’Bryan, in which O’Bryan was to advance the purchase price, and was to be repaid out of the profits of operation. Here the facts are different. Here, from the result of their joint efforts, there is a profit from partnership activities, both in money and land, or a lease on land. They both contributed jointly to the acquisition of such property. By their joint efforts the Croninger property was acquired and traded for the Broadway property, which resulted in a profit to them of the Broadway property, subject to the mortgage. There was a surplus fund realized from the mortgage, over and above the cash purchase price for the Croninger property, and we think this suit primarily is to compel a division of profits realized from a partnership activity. We are furthermore of the opinion that they acquired the Broadway property for the purpose of reselling it, and we know of no rule of law that would prevent a partner from recovering his interest in partnership real estate, the title to which had been fraudulently taken in the name of another for the purpose of defeating his interest therein. Toll v. Lewis, 136 Ark. 318, 206 S. W. 442.
Finding no reversible error, the decree of the chan-. eery court is affirmed. | [
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Hart, J.,
(after stating the facts). In the first answer filed by appellant, he claims title to the land in dispute by adverse possession. According to the testimony of J. H. Trigg, his mother, Sabina C. Trigg, sold to E. E. Meador about 20 acres of land and made him a deed to it under correct description. J. H. Trigg lived at Arkadelphia, Arkansas, at the time, and was looking after the farm which his mother owned near Half Moon Lake. He knew personally about the trade that was made between them and why it was made. He talked the matter over with both his mother and with E. E. Meador. He remembered why the provision was put in the deed about the fence. According to his testimony, E. E. Meador owned some land north of the land that he was buying from Mrs. Sabina C. Trigg. The latter had a fence which was built on the high ground on the south and east sides of Half Moon Lake, and the fence turned with the lake and ran up north to the north side of Mrs. Trigg’s land on the east side of the lake. The fence was not built along the section line, but was built on the high ground from Ouachita River so as to inclose the cultivated land of Mrs. Trigg on the south and east sides of Half Moon Lake. This left a strip of land of about 40 acres which was between the horn of Half Moon Lake and the river and above the south bank of the lake. The lake at this time was filled with water, and the south,end of it went west and emptied into the river, as indicated on the plat made by the county surveyor. E. E. Meador wished to ‘buy about 20 acres which adjoined his land on the north side of Half Moon Lake, and his mother agreed to sell it to him. This was a strip of land 6y2 chains wide extending from Ouachita River to the center of Half Moon Lake on the east. In other words, it was a strip of land 6y2 chains wide running south from the south boundary line of the lands already owned by E. E. Meador towards the northern boundary of Half Moon Lake. The northern boundary of the strip runs east and west 34.70 chains, and the southern boundary therefore was 28.50 chains in length. The southern boundary line of the strip extended from the Ouachita River in an easterly direction to the center of Half Moon Lake. Half Moon Lake extended from the Ouachita River in an easterly direction, and then turned north, so that both the southeastern and northeastern corners of the strip sold by Mrs. Trigg to Meador were in the center of Half Moon Lake. After Meador purchased said strip from Mrs. Trigg, he extended a fence from the southern boundary line of said strip across said Half Moon Lake and joined it with the fence of Mrs. Trigg on the south side of Half Moon Lake. This left a strip of ground inclosed in which he kept his hogs, and called it his hog pasture. According to his own testimony and that of his brother, he has held possession of this hog pasture since the execution of the deed to him by Mrs. Trigg in June, 1901. He had at all times claimed to own the hog pasture as Ms own. He admits, however, in Ms testimony, that at the time he purchased the land it was surveyed, and that he paid so much per acre for it. Under these circumstances it-cannot be said that the chancellor erred in holding that appellant had not acquired title to the hog pasture ¡by adverse possession. In the first place, the deed from Mrs. Trigg to him gave him license to join his fence with that of Mrs. Trigg on the bank of Half Moon Lake. After the execution of the deed he built a fence from his own land across Half Moon Lake and joined it to the fence of Mrs. Trigg on the south side. This fence was built under the license given him in the deed, and his use of the strip of ground called the hog pasture was permissive. It is true that he testified that he held possession of the hog pasture adversely to all persons, and in this respect he is corroborated by the testimony of his brother.
On the other hand, as we have just seen, he is contradicted by the attending circumstances and by the testimony of J. H. Trigg. He admits himself 'that he bought the land at so much per acre, and the number of acres recited in his deed and the consideration recited therein corroborate the fact that he bought the land at so much per acre. The number of acres described in the deed is about 20% acres and the consideration is $210.75. This would make a price of about $10 per acre.
Moreover, the possession of appellant having been acquired by the license given him in the deed, it devolves on him to show that he had given notice to Mrs. Trigg that he held the land adversely to her. There is nothing t.o show that he ever gave her any such notice, and his possession of the hog pasture, under the circumstances, was not sufficient to put Mrs. Trigg upon notice that he was claiming the land by adverse possession.
The construction of the fence which made the hog pasture, being permissive and being done under the license given Meador in the deed from Mrs. Trigg, in order to obtain title by adverse possession he must have given actual notice to Mrs. Trigg that he was claiming the land adversely, or his possession must have been in such a notoriously hostile way as necessarily to put the owner of the land upon notice. In other words, his actual use of the land must have been of such unequivocal character as to reasonably indicate to the owner, visiting the premises during such statutory period, that such use and occupation indicated an appropriation of ownership in another. Dowdle v. Wheeler, 76 Ark. 529, and Norwood v. Mayo, 153 Ark. 620.
The case is entirely different from Chicot Lumber Co. v. Dardell, 84 Ark. 140. There a camp was erected upon the land, and, during the whole of the statutory period, the occupant was engaged with a large force of employees in cutting the timber and manufacturing it into staves'. This was done openly, and the staves were hauled from the land to the railroad. These circumstances would clearly indicate to the owner that the occupant was holding the land adversely under claim of ownership.
In the case before us, as we have already seen, the erection of the fence was permissive, and the use of the woodland só inclosed was not sufficient to put the owner upon notice that Meador was claiming the land as Ms own.
It is next insisted that Meador was entitled to have his deed reformed so as to include, in any event, all of the land north of Half Moon Lake. We cannot agree with counsel in this contention. It is true that E. E. Meador testified that it was the intention of Mrs. Trigg to convey to him all of the land owned by her north of Half Moon Lake and that his testimony on this point is corroborated, to an extent, by that of three other witnesses. On tMs point Edward Orrell was asked if he did not know that, when E. E. Meador purchased this land from Mrs. 'Sabina O. Trigg, he bought all of the land north of the Half Moon Lake. His answer was, “Yes sir, it was the understanding.” We quote from the testimony of J. A. Holmes the following: “Q. Did Mr. E. E. Meador purchase from her (Mrs. Trigg) all .of her land north of Half Moon Lake in 1901? A. Yes sir.”
On this point we quote from the testimony of William Hart as follows: “ Q. Did Mr. J. H. Trigg or Mrs. Sabina C. Trigg ever point out to you where the hue was between Mr. Meador’s land and the Trigg land? A. Mrs. Trigg has not, but Mr. Trigg has spoken concerning that. Q. Did you understand that the lake was the line between them? A. No, he pointed out a spring that it came close to. Q. That is, that it come across the lake at the lower end and joined to this fence and then run back and hit the center of the lake? A. Yes.”
In the first place, the evidence introduced by E. E. Meador to corroborate his own testimony on this point is very general and indefinite, and lacks that clear and unequivocal character which is necessary for a reformation of a deed.. On the other hand, this testimony is flatly contradicted by J. H. Trigg and the attending circumstances. J. H. Trigg acted for his mother in the premises, and says that both Meador and his mother told him that it was the intention to embrace in the deed only the land that was described in it. He is corroborated in this respect by the description in the deed. A survey was made of the tract intended to be conveyed, and it was described in the deed by metes and bounds. This clearly indicates that there was an intention'to convey only the land which had been surveyed and described in the deed. There would have been no use in measuring the land and giving a particular description of it by metes and bounds unless that description was to- govern.
It is well settled in this State that, while parol evidence is admissible in an action to reform a deed on the ground of fraud and mistake, or either of fraud or mistake, the evidence to warrant such reformation must be clear, convincing, and decisive. Welch v. Welch 132 Ark. 227, and cases cited, and Beneaux v. Sparks, 144 Ark. 23.
Moreover, no reformation of the deed was asked until after all of the evidence had been taken and the ease was ready to be submitted to the chancellor. The chancellor refused to allow the pleadings to be amended in this respect, and, under the circumstances, there was no abuse of discretion on his part.
It follows that the decree will be affirmed. | [
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Jim Hannah, Justice.
Wal-Mart Stores, Inc. (Wal-Mart), appeals an order reinstating Earnestine Taylor’s lawsuit. Taylor’s lawsuit was dismissed in error by the circuit court for failure to prosecute under Ark. R. Civ. P. 41. There was no failure to prosecute at the time the lawsuit was dismissed. The case was set to be tried within a few weeks. This was the second dismissal of this action, and pursuant to Ark. R. Civ. P. 41(b), it operates as an adjudication on the merits. Hartford Ins. Co. v. Mullinax, 336 Ark. 335, 984 S.W.2d 812 (1999).
Taylor waited seventeen months after the dismissal before filing her motion to reinstate her case. Because this involves relief from a judgment or order issued in 1999, the 1999 version of Ark. R. Civ. P. 60 applies. The error at issue is a judicial error in entering the order of dismissal. The error is not a clerical error, and, therefore, there is no relief “any time” under Rule 60(a). This is an error that comes under then existing Rule 60(b), as a motion seeking relief from an order entered in error. The relief sought is modification of an order or judgment to prevent a miscarriage of justice, and, as such, it had to be filed within ninety days of the dismissal. This was not done. The trial court had no jurisdiction to entertain the motion to reinstate the case. Therefore, this case is reversed and dismissed.
Facts
On January 16, 1989, Earnestine Taylor was shopping at Wal-Mart. She alleges she was knocked into a display and injured by a Wal-Mart employee who was in pursuit of a shoplifter. Taylor filed a lawsuit in St. Francis County in 1991, which was CIV91-75. This case was assigned to Judge Harvey Yates. During trial on June 4, 1996, Taylor sought and received a dismissal without prejudice. On November 21, 1996, Taylor re-filed her lawsuit in St. Francis County, which was CIV96-358. This time the case was assigned to Judge L.T. Simes, II.
The parties were prosecuting the action under CIV96-358 in Judge Simes’s court when the St. Francis Clerk’s office generated a notice in CIV91-75 that under Ark. R. Civ. P. 41(b) there had been no action in the last twelve months. This notice was in error because CIV91-75 had been non-suited. Nonetheless, the notice in CIV91-75 was sent by the clerk’s office to Judge Yates on November 25, 1997. As a consequence of that, Judge Yates issued an order to show cause why CIV91-75 should not be dismissed. On December 3, 1997, Judge Yates entered an order vacating his November 25, 1997, dismissal of CIV91-75. It appears that shortly thereafter, the St. Francis Clerk’s office sent an identical notice under Ark. R. Civ. P. 41(b), again to Judge Yates, but this notice was on CIV96358. On December 17, 1997, an order to show cause why CIV96358 should not be dismissed was entered. The notice gave the plaintiff ten days to show why the case should not be dismissed under Rule 41 (b) due to inactivity for the past twelve months. The notice from the clerk’s office on CIV96-358 was in error because the case was set to be tried within a few weeks.
Nothing was done in the ten days, and CIV96-358 was dismissed. Correspondence in the case shows counsel was aware of the dismissal. No motion to vacate was filed within ninety days. A motion was not filed until June 4, 1999, about seventeen months after the dismissal. The trial court, however, granted the motion to reinstate the case and the order dismissing it was vacated. Wal-Mart now appeals that decision.
Appealable Order
The order vacating the order of dismissal is an appealable order. This was the second dismissal of this cause of action, and pursuant to Ark. R. Civ. P. 41(b), it operates as an adjudication on the merits. Mullinax, supra. The final judgment was vacated more than ninety days after it was entered, and, therefore, the order is appealable because it determines the outcome in the equivalent of an independent action setting aside the judgment. Lamb v. JFM, Inc., 311 Ark. 89, 842 S.W.2d 10 (1992).
Flagrantly Deficient Abstract
Taylor argues that the abstract is flagrantly deficient because it does not contain the affidavit of Stacy White, Judge Yates’s case coordinator. This court will affirm based on a flagrantly deficient abstract. Greene v. Pack, 343 Ark. 97, 32 S.W.3d 482 (2000). White’s affidavit does not appear in the record. Apparently, White’s affidavit was not introduced. This case was sent back for the record to be supplemented at the request of Taylor, and White’s affidavit was not included in the supplemented record. Therefore, it could not appear in the abstract. There is no merit to this issue.
Rule 60
We note at the outset that Rule 60 was modified in 2000 to reflect this court’s holding in Lord v. Manzzanti, 339 Ark. 25, 2 S.W.2d 76 (1999), wherein this court found that “clerical mistakes” under then existing subdivision (a) .could be corrected at any time, overruling any contrary language in Ross v. Southern Farm Bureau Cas. Ins. Co., 333 Ark. 227, 968 S.W.2d 622 (1998). In 2000, discussion of “clerical errors” was moved from paragraph (a) to paragraph (b). The discussion of vacation or modification of judgments and orders to prevent the miscarriage of justice was moved from paragraph (b) to paragraph (a).
In the case before us, Taylor did not attempt to vacate the order of dismissal until seventeen months had passed. This is significant because if the error is not clerical, but rather an error by the court, then the trial court was without jurisdiction to entertain the motion and enter the order reinstating the case in 1999. The first issue we must decide then is whether the error was a clerical error or misprision. In Manzzanti, supra, this court held that under then-existing Ark. R. Civ. P. 60(a), a clerical error could be corrected at any time, even after ninety days have passed. It does not appear the error in this case was a clerical error or misprision.
This court in Ross, supra, discussed a somewhat similar problem to the one we now face. In Ross, some claims, but not all, were settled. However, an order was entered dismissing all claims with prejudice. Then, as in this case, more than ninety days passed before the court entered a corrected order. In Ross, this court found that the ninety-day rule applied. The case was reversed. This court in Manzzanti clarified Ross, stating that the error in Ross was nonclerical, and, therefore, one that was subject to the ninety-day limitation.
Thus, where an order is entered by the court in error, it is not a clerical error. In the case before us, an order was entered by the court in error. The law is clear that not only must an order modifying a judgment be entered within ninety days of the original order, but the trial court loses the authority to modify an original order under Ark. R. Civ. P. 60 after the expiration of ninety days from the entry of that first order. Griggs v. Cook, 315 Ark. 74, 864 S.W.2d 832 (1993); Ware v. Gardner, 309 Ark. 148, 827 S.W.2d 657 (1992); City of Little Rock v. Ragan, 297 Ark. 525, 763 S.W.2d 87 (1989); Diebold v. Myers Gen. Agency, Inc., 292 Ark. 456, 731 S.W.2d 183 (1987).
Ware is also on point. Therein, the court considered the question of whether a trial court could vacate an order dismissing an action for failure to prosecute more than ninety days after the order of dismissal. This court held that a trial court could not vacate an order dismissing under Rule 41 after more than ninety days. The same holds true in the case before us. The order at issue was entered without question more than ninety days after the dismissal. There was no power in the circuit judge to act at this belated time. The order reinstating the case, therefore, was void.
Taylor failed to move to vacate the judgment within ninety days, and the court was without jurisdiction to entertain the motion.
Reversed and dismissed.
Corbin, J., not participating. | [
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Jim Hannah, Justice.
Appellants Bob E. Fewell and Holdingsco, Inc., appeal from the Pulaski County Circuit Court’s order liquidating American Investors Life Insurance Company (American Investors) as part of the ongoing receivership action previously addressed in a prior appeal by these parties. See Fewell v. Pickens, 344 Ark. 368, 39 S.W.3d 447 (2001) (“Fewell I). In the prior appeal, Fewell and Holdingsco appealed the Pulaski County Circuit Court’s orders appointing a receiver for American Investors, enjoining the appellants from transacting business for the company, denying their motion to vacate the order appointing the receiver, granting an injunction, and denying their motion to strike an affidavit of service. The appellee is Mike Pickens, who is the Arkansas Insurance Commissioner and appointed receiver.
A summary of facts leading to the first appeal in this matter is contained in our prior opinion and will not be restated here. However, the facts leading to this present appeal occurred during the pendency of that appeal, and they are summarized herein. On January 26, 2001, the Insurance Commissioner filed an Application for Order to Show Cause and for Order of Liquidation. The trial court scheduled a hearing on this motion for February 23, 2001.
On February 5, 2001, Fewell and Holdingsco filed a motion to dismiss, strike, or stay the Commissioner’s application for a show-cause order and order of liquidation arguing that such an application was an “admission” that the original receivership was improper and that this was an attempt to transfer the burden of proof from the Insurance Department to American Investors and the appellants. Fewell and Holdingsco also argued that the show-cause proceedings should be stayed pending the appeal of the appointment of the receiver. Fewell and Holdingsco requested in a separate document filed February 7, 2001, that the trial court postpone the scheduled hearing on Feburary 23, 2001, so that discovery could be completed.
In addition to the pleadings filed in circuit court, Fewell and Holdingsco petitioned the Arkansas Supreme Court for a Writ of Prohibition to prohibit the trial court from proceeding on the application, and this court denied the writ on February 15, 2001, after oral arguments. Fewell and Holdingsco then sought a stay in the trial court, and the trial court denied the stay. Upon this denial by the trial court, Fewell and Holdingsco renewed their Petition for Writ of Prohibition, and this court again denied the petition without prejudice on February 22, 2001, and indicated that the issue of the trial court’s jurisdiction to hear the matter of liquidation could be raised again on appeal.
The trial court held the hearing on February 23, 2001, at which the Commissioner presented evidence for ids petition for liquidation. Following the hearing, the trial court entered its Order of Liquidation requiring the appointed receiver to liquidate American Investors and to prohibit Fewell, Holdingsco, and American Investors from doing anything to diminish the value of American Investors or any of its holdings and assets. Fewell and Holdingsco filed a notice of appeal on March 5, 2001.
On April 5, 2001, this court issued its opinion regarding the legality of the trial court’s appointment of a receiver and initiation of delinquency proceedings in August 2000. See Fewell I. In the opinion, this court specifically found, among other things, that Fewell and Holdingsco bargained away their ability to challenge the Commissioner’s initiation of delinquency proceedings and claim for receivership in the 1999 Agreements detailed in our prior opinion. This court found that Fewell and Holdingsco waived the statutory requirements under Ark. Code Ann. § 23-68-104 (Repl. 1994), for an Order to Show Cause and Petition for Receivership. The Court further found that the Arkansas Uniform Insurers Liquidation Act, Ark. Code Ann. §§ 23-68-101 — 23-68-132 (Repl. 1994, Supp. 1999) (Uniform Act), is a special statutory proceeding that usurps the Rules of Civil Procedure, thus allowing the trial court to conduct the proceedings outside the constraints of those rules.
I. Application of Ark. Code Ann. $ 23-68-104
In their first argument on appeal, Fewell and Holdingsco argue that the trial court erred in failing to follow the statutory procedures in Ark. Code Ann. § 23-68-104 requiring the Commissioner to apply for an order to show cause and the trial court to conduct a “full hearing” on that application. The Commissioner argues that Ark. Code Ann. § 23-68-104 does not apply and that Fewell and Holdingsco did not show that failure of the trial court to proceed under that provision was error.
We do not reach this issue because our prior opinion holds that Fewell and Holdingsco waived their right to a show-cause order and a hearing under the 1999 Agreements. In our opinion issued on April 5, 2001, we stated that:
In light of the language contained in the 1999 Agreements between the parties, we conclude that the statutory requirements of § 23-68-104 do not control in this case. It is true that § 23-68-104 contemplates the commissioner’s petition for an order to show cause and a full hearing before granting that petition. But Fewell and Holdingsco waived those statutory requirements under the Uniform Act by consenting to an immediate receivership in the event of breach without prior notice. The standard definition of waiver is the voluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that he will forever be deprived of its benefits. Pearson v. Henrickson, 336 Ark. 12, 983 S.W.2d 419 (1999) (citing Continental Ins. Cos. v. Stanley, 263 Ark. 638, 569 S.W.2d 653 (1978)); Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993). Fewell and Holdingsco clearly agreed in 1999 to waiver of their statutory rights under § 23-68-104, if Pickens would forebear placing them into receivership at that time.
The circuit court found that the appellants had consented to the entry of an order of receivership without prior notice. We agree with the court’s finding and hold that Fewell and Holdingsco waived their rights under § 23-68-104 by executing the 1999 Agreements. We hold, in addition, that the immediate entry of a receivership order on July 11, 2000, with the permanent injunction, albeit entered ex parte, did not violate due process protections. We further note that on August 4, 2000, the appellants did have the opportunity to be heard on the circuit judge’s order. Indeed, at that time they made their argument to the judge concerning the alleged lack of a 1999 True Up Calculation and moved that the July 11, 2000 order be set aside. This request was denied. The August 4, 2000 hearing, in our view, provided the appellants with an opportunity to be heard on the legitimacy of the receivership order.
Fewell I, 344 Ark. at 380. Clearly, we held that Fewell and Holdingsco waived their right to a show-cause order and hearing under the 1999 Agreements. Those Agreements contained this language;
However, upon breach of any one of the aforesaid covenants, the Company, the Parent and Fewell hereby agree and consent to the immediate commencement and entry of an order granting receivership against the Company by the Department under Ark. Code Ann. § 23-68-101 through § 23-68-132 and waive prior notice of entry of an order of permanent receivership.
Such a waiver extends to this case because we hold that Ark. Code Ann. § 23-68-104 only applies to the “commencement” of delinquency proceedings, which necessarily means that it applies to the initiation by the Commissioner of the proceedings to place an insurance company into receivership. The statute at issue, Ark. Code Ann. § 23-68-104, states:
Commencement of delinquency proceedings.
The commissioner shall commence any such proceedings by application to the court for an order directing the insurer to show cause why the commissioner should not have the relief prayed for. On the return of such order to show cause, and after a full hearing, the court shall either deny the application or grant the application, together with such other relief as the nature of the case and the interests of the policyholders, creditors, stockholders, members, subscribers, or the public may require.
The term “delinquency proceeding” is defined in Ark. Code Ann. § 23-68-102(3) as:
(3) “Delinquency proceeding” means any proceeding commenced against an insurer pursuant to this chapter for the purpose of liquidating, rehabilitating, reorganizing, or conserving such insurer.
These statutory sections indicate that the initial filing of delinquency proceedings by the Commissioner must involve an application for an order to show cause and a full hearing on that initial application to institute delinquency proceedings. However, subsequent proceedings, which are not “commencement” proceedings, do not fall under the requirements of Ark. Code Ann. § 23-68-104.
The Uniform Act supports a finding that the trial court is not required to enter a show-cause order and hold a “full hearing” after the “commencement” of the action. In Ark. Code Ann. § 23-68-107, the statute provides for a procedure allowing the Commissioner to apply for liquidation. The statute states:
23-68-107. Grounds for liquidation.
The commissioner may apply to the court for an order appointing him as receiver, if his appointment as receiver shall not be then in effect, and directing him to liquidate the business of a domestic insurer or of the United States branch of an alien insurer having trusted assets in this state, regardless of whether or not there has been a prior order directing him to rehabilitate such insurer, upon any of the grounds specified in 23-68-106, or if the insurer:
(1) Has ceased transacting business for a period of one (1) year; or
(2) Is an insolvent insurer and has commenced voluntary liquidation or dissolution or attempts to commence or prosecute any action or proceeding to liquidate its business or affairs or to dissolve its corporate charter or to procure the appointment of a receiver, trustee, custodian, or sequestrator under any law except this code.
This statute obviously does not provide for a hearing upon the application by the Commissioner for an order to liquidate. Instead, it merely requires, at the least, an application by the Commissioner indicating that one of these two provisions or any of the grounds in Ark. Code Ann. § 23-68-106 have been met.
This court reviews issues of statutory construction de novo, as it is for this court to decide what a statute means. Stephens v. Arkansas School for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000); Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). In this respect, we are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id. 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. The statute must be construed so that no word is left void or superfluous and in such a way that meaning and effect is given to every word therein, if possible. Id. If the language of a statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation. Id. Where the meaning is not clear, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Id. (citing State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994)). Statutes relating to the same subject are said to be in pari materia and should be read in a harmonious manner, if possible. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). The basic rule of statutory construction is to give effect to the intent of the General Assembly. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999).
In reading the statutory scheme as a whole, and taking into consideration the fact that Fewell and Holdingsco waived their right to a show-cause order and hearing under Ark. Code Ann. § 23-68-104, we hold that the trial court did not err in failing to issue the show-cause order before holding the February 23, 2001, hearing. We hold, in addition, that it is not necessary to address Fewell’s and Holdingsco’s argument that the Commissioner is judicially estopped from proceeding with the order of liquidation because of misrepresentations made by its attorney. We also hold that the February 23, 2001, hearing did not violate due process requirements because a hearing was held even where the statutory scheme does not provide for one. Fewell and Holdingsco were provided an opportunity to be heard and due process was not violated.
II. Discovery
Fewell and Holdingsco next argue that the trial court erred in denying them the opportunity to conduct discovery and investigate the issues before the court. They argue that the court did not postpone the hearing at their request and that the Commissioner failed to comply with the outstanding discovery requests, thus hampering their ability to present a proper challenge at the hearing on February 23, 2001.
Again, we rely on our first opinion and hold that the Arkansas Rules of Civil Procedure, which contain guidelines and rules for the discovery process, do not apply in receivership proceedings. We specifically stated in Feivell I that “the Uniform Act establishes a special statutory proceeding for receivership matters and associated injunctions and, as a consequence, the proceedings involved in this matter which are fixed by statute are not controlled by the Arkansas Rules of Civil Procedure. See Ark.R.Civ.P. 81(a).” Fewell I, 344 Ark. at 379.
Pursuant to such a ruling in Fewell I, we need only review the trial court’s refusal to allow full discovery for an abuse of discretion. This court has long held that the trial court has wide discretion in matters pertaining to discovery and that a trial court’s decision will not be reversed absent an abuse of discretion. Parker v. Southern Farm Bureau Ins. Co., 326 Ark. 1073, 935 S.W.2d 556 (1996); Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992) (citing Marrow v. State Farm Ins. Co., 264 Ark. 227, 570 S.W.2d 607 (1978)); Hanna v. Johnson, 233 Ark. 409, 344 S.W.2d 846 (1961). Although this court recognizes the magnitude of the trial court’s discretion in discovery matters, it has found an abuse of discretion where there has been an undue limitation of substantial rights of the appellant under the prevailing circumstances. Rickett v. Hayes, 251 Ark. 395, 473 S.W.2d 446 (1971). The goal of discovery is to permit a litigant to obtain whatever information he may need to prepare adequately for issues that may develop without imposing an onerous burden on his adversary. Id.
Again, discovery here is controlled by the Uniform Act, and liquidation proceedings are specifically controlled under Ark. Code Ann. § 23-68-107. The Uniform Act as a whole and specifically Ark. Code Ann. § 23-68-107 do not require the trial court to hold a hearing in liquidation proceedings, much less require any form of discovery prior to the court’s decision. The parties did not raise the constitutionality of the statutes, and that issue is not preserved on appeal. As such, because the Uniform Act does not require any particular form of discovery or hearings, and the trial court allowed discovery and a hearing, we cannot say that the trial court abused its discretion in limiting the scope and timing of discovery in this case.
III. Subject-matter Jurisdiction
In their final point on appeal, Fewell and Holdingsco argue that the trial court did not have subject-matter jurisdiction to hear and decide the Commissioner’s petition for order of liquidation because the case was on appeal to this court on the issue of the validity of the appointment of the receiver. The Commissioner argues that the trial court did have jurisdiction to hear the liquidation issue because it is a collateral matter not on appeal.
As an initial consideration, it should be noted that when this court denied the appellants’s motion for writ of prohibition on February 22, 2001, it did so without prejudice to allow them to raise the issue of subject-matter jurisdiction on appeal. On the merits, it appears that the General Assembly anticipated that various orders would be appealed without affecting the jurisdiction of the trial court, as noted in Ark. Code Ann. § 23-68-103(d), which states:
(d) An appeal shall lie to the Supreme Court from an order granting or refusing rehabilitation, liquidation, or conservation, and from every other order in delinquency proceedings having the character of a final order as to the particular portion of the proceedings embraced therein.
(Emphasis added.) In looking at this provision, we believe that the General Assembly anticipated that appeals would arise piecemeal from orders issued by the trial court. As such, we find that the matters here were collateral and that the trial court retained jurisdiction to hear the liquidation petition while the appeal in Fewell I was pending here.
Divestiture of jurisdiction in the trial court only occurs when the issue on appeal directly relates to the matter under review by the appellate court. We noted in Vanderpool v. Fidelity & Cas. & Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997), that:
The rule that an appeal divests the trial court of jurisdiction applies only to matters necessarily or directly involved in the matter under review. It does not stay further proceedings with respect to rights not passed on or affected by the judgment or decree from which the appeal is taken. Matters which are independent of, or collateral or supplemental, are left within the jurisdiction and control of the trial court.
Id., 327 Ark. at 412 (quoting Sherman v. State, 326 Ark. 153, 158, 931 S.W.2d 417, 421 (quoting Bleidt v. 555, Inc., 253 Ark. 348, 350-51, 485 S.W.2d 721, 723 (1972) (per curiam)); see also Marsh & McLennan of Arkansas v. Herget, 321 Ark. 180, 900 S.W.2d 195 (1995).
First, it should be noted that while Fewell and Holdingsco argue here that the issues in the liquidation proceeding dealing with the change of the focus of that proceeding (from rehabilitation to liquidation) are the same issues that were on appeal, a review of our previous appeal indicates that the interveners were not litigating the rehabilitation issue, but rather the issue of the appointment of the receiver and the entry of the injunction. This court summarized their arguments in the prior appeal as:
The appellants in this case, Bob E. Fewell and Holdingsco, Inc., appeal from an order by the Pulaski County Circuit Court appointing a receiver for American Investors Life Insurance Company (American Investors) and enjoining the appellants from transacting business for the company. They further appeal from an order denying their motion to vacate the appointment of the receiver and the injunction and from an order denying their motion to strike an affidavit of service.
Fewell I, 377 Ark. at 371.
In addition, we agree with the Commissioner’s argument that these proceedings are similar and analogous to bankruptcy proceedings. In bankruptcy proceedings, for example, the federal bankruptcy court retains jurisdiction over collateral matters of the bankruptcy pending appeals on piecemeal issues and orders dealing with the details of the bankruptcy. See In Re Strawberry Square Associates, 152 B.R. 699 (Bankr. E.D.N.Y. 1993). This situation, like a bankruptcy situation, involves not only the business or person directly affected by the divestment of control over personal or business matters, but it also affects creditors and claimants who depend on the viability of the company or person in order to be paid. In fact, in this particular type of liquidation proceeding involving an insurance company, perhaps the necessity of allowing the trial court to proceed with collateral issues is particularly important where claimants are waiting for bills to be paid. If an appellant is permitted to stall the proceedings by receiving a stay on appeal for each separate order, years could pass before claimants are paid and, during that time, the assets of the company could be depleted either by payment of costs of the operation of the business or other matters adversely affecting the financial aspects of the business.
Certainly, any “interlocutory” appeal is going to relate to the entire pending receivership and liquidation — however, the question should be whether allowing the trial court to go forward with the liquidation proceeding, for example, affects the pending appeal of the challenge to the appointment of the receiver. We determine that it does not after reviewing the evidence in this case.
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Glaze and Imber, JJ., concur. | [
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Robert L. Brown, Justice.
Pending before this court are two matters. First, there is the appeal of appellants Roy Helton (Helton) and the members of the Phillips County Board of Election Commissioners (Election Commission) from the order of the circuit court, granting appellee Arlanda Jacobs’s petition for writ of mandamus and declaratory judgment and declaring the office of the Justice of the Peace, District 7, Phillips County, to be vacant. The petition by Jacobs was brought individually and on behalf of the voters of Justice of the Peace, District 7. Secondly, there is Jacobs’s motion to dismiss the appeal on grounds that Helton’s notice of appeal was untimely and the Election Commission lacked standing to appeal. We deny Jacobs’s motion to dismiss. We reverse the order of the circuit court, and we remand with instructions to the circuit court.
In May 2000, Jacobs, Helton, and Doris Diane Tyler were all candidates for the position of Justice of the Peace, District 7, in Phillips County. On May 5, 2000, Jacobs petitioned the circuit court for a writ of mandamus coupled with a declaratory judgment to remove Tyler from the ballot because she was not a resident of District 7. A hearing on the petition was set for May 16, 2000, and on that date, Tyler counterclaimed that Jacobs was not qualified as a candidate because his filing fee check had been dishonored by the bank. On May 19, 2000, the circuit court entered findings of fact and conclusions of law as well as a separate order. The court concluded that both Jacobs and Tyler were ineligible as candidates for Justice of the Peace, District 7. The circuit court also ordered the Election Commission not to certify any votes cast for Jacobs or Tyler on election day, which was May 23, 2000. The court stated that there was no time to remove the disqualified candidates from the ballot.
Because the ballots for the primary election had been printed and the computer “chip” for tabulating votes had been programmed, the votes for Jacobs, Helton, and Tyler were counted following the May 23 primary election. The tabulated votes showed Jacobs receiving 234 votes; Helton receiving 162 votes; and Tyler receiving 82 votes. The Election Commission marked through the votes cast for Jacobs and Tyler in the election results submitted with its certification and certified Helton as the winner of the primary election.
On June 15, 2000, Denise Olloway and Jacobs petitioned for a writ of mandamus and declaratory judgment. The petition requested that the circuit court direct the Election Commission to certify Jacobs as the winner of the May 23 primary election, or, alternatively, declare the position of Justice of the Peace, District 7, to be vacant. There was no prayer that the circuit court disqualify Helton as a candidate. The Election Commission answered and prayed that the court dismiss Jacobs’s petition on the basis that the circuit court had found Jacobs was ineligible as a candidate and ordered that no votes were to be certified for him.
On October 5, 2000, this court affirmed the order of the circuit court which disqualified Jacobs as a candidate and which ordered that no May 23 votes for Jacobs were to be certified. See Jacobs v. Yates, 342 Ark. 243, 27 S.W.3d 734 (2000). In that case, we specifically held:
In sum, we conclude that Jacobs’s appeal is without merit and that the trial court correctly determined that any ballots cast for him in the primary election should not have been counted and certified by the election commission. The trial court is affirmed and the mandate is ordered issued within five days unless a petition for rehearing is filed.
Jacobs, 342 Ark. at 255, 27 S.W.3d at 742. On October 20, 2000, Helton moved to dismiss Jacobs’s petition under Ark. R. Civ. P. 12(b)(6) and (8) because of this court’s decision in Jacobs v. Yates, supra. The Election Commission later amended its answer to assert that the grounds set forth in Jacobs’s petition were decided in Jacobs v. Yates, supra. Helton also amended his answer to assert res judicata as an affirmative defense. On November 7, 2000, Helton was listed as an unopposed candidate for Justice of the Peace, District 7, on the general election ballot and was subsequently certified as the winner after the election.
On November 16, 2000, Jacobs’s petition was heard before the circuit court. Based on a stipulation of the parties, Jacobs’s only prayer for relief submitted to the circuit court was that the position of Justice of the Peace, District 7, be declared vacant pursuant to Ark. Code Ann. § 7-5-315 (Repl. 2000), and filled in accordance with law. On December 29, 2000, the circuit court entered its order declaring a vacancy in nomination in the position of Justice of the Peace, District 7, and voiding the certificate of election granted to Helton. The order further provided that Jacobs, as the incumbent Justice of the Peace, would continue as a “holdover” in the office until the vacancy was filled. The order also denied Helton’s motion to dismiss and, by implication, the prayer for dismissal made by the Election Commission. In its order, the circuit court noted that the will of the people should be the guiding principle in election cases and that Jacobs had received the highest percentage of the votes cast on May 23. The court went on to observe that votes are counted for persons who withdraw from a race or die after certification of the ballot or after the fifing period has ended under Ark. Code Ann. § 7-5-315 (7) (A) (Repl. 2000), and that this results in a vacancy in nomination. The court then equated Jacobs’s disqualification before the May 23 primary election to death or withdrawal under the statute and, thus, concluded that a vacancy in nomination had resulted.
Helton and the Election Commission filed the appeal which is before this court today. On January 18, 2001, Jacobs moved to dismiss the appeals of both appellants on separate grounds.
I. Jacobs’s Motion to Dismiss
We first address Jacobs’s motion to dismiss the appeals of Helton and the Election Commission. The motion is premised on Jacobs’s conclusion that his June 15, 2000 petition was an election contest. Because we do not agree that Jacobs’s petition was one contesting the election results between two candidates or that the circuit court’s order resolved an election contest, we deny the motion.
As an initial point, we again observe that Jacobs never disputed the eligibility or qualifications of Helton to stand as a candidate for Justice of the Peace, District 7. Jacobs’s eligibility as a candidate, however, was challenged pre-election by Tyler, and the circuit court agreed that he was disqualified and ordered that any votes cast for him should not be certified. The procedure followed by Tyler for Jacobs’s removal from the ballot was a petition for writ of mandamus and declaratory judgment, which is the procedure this court endorsed in State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989), for pre-election attacks on a candidate’s eligibility to stand for election and for removal of that ineligible candidate’s name from the ballot. See Ark. Code Ann. § 7-5-207(b) (Repl. 2000). See also Tittle v. Woodruff, 322 Ark. 153, 907 S.W.2d 734 (1995). Upon removal, that person is no longer a candidate. An election contest, on the other hand, is a right of action “conferred on any candidate to contest the certification of nomination or the certificate of vote as made by the appropriate officials in any election.” Ark. Code Ann. § 7-5-801 (a) (Repl. 2000) (emphasis added). It is a “post-election contest between two competing candidates.” Jacobs v. Yates, 342 Ark. at 250, 27 S.W.3d at 738. See also Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992); McClendon v. McKeown, 230 Ark. 521, 323 S.W.2d 542 (1959).
What is undisputed in this case is that Jacobs was disqualified as a candidate before the election. Thus, he could not contest the election results as a candidate, as required by § 7-5-801 (a). Because Jacobs’s cause of action was not an election contest, the seven-day limit for a party to appeal an order set out in Ark. Code Ann. § 7-5-810 (Repl. 2000), does not apply. We hold that Helton had thirty days to file his notice of appeal and that it was timely. See Ark. R. App. P. — Civ. 4(a).
Jacobs moves that the Election Commission has no right to pursue this appeal for different reasons. He asserts that the Election Commission, as a nominal party, has no standing to appeal and, further, that it failed to make financial arrangements with the court reporter to prepare the record. We address the financial arrangements point first. Both Helton and the Election Commission stated in their notices of appeal that no financial arrangements had been made with the court reporter yet, but that they both were willing to pay. up to fifty percent of the transcript costs in accordance with Ark. Code Ann. § 16-13-510(c) (Repl. 1999). Attached to Helton’s response to the motion to dismiss was a copy of a letter dated January 5, 2001, from Helton’s counsel to the court reporter ordering the record, along with a copy of a check for $100, as a deposit. Furthermore, we note that the record was timely filed by the appellants. Failure to include financial arrangements language in a notice of appeal no longer renders that notice invalid. In Re: Rule 3, Rules of Appellate Procedure — Civil, 336 Ark. 645 (1999). Under these circumstances, we determine that there has been substantial compliance with Ark. R. App. P. — Civ. 3(e). See Rogers v. Tudor Ins. Co., 325 Ark. 226, 925 S.W.2d 395 (1996). We hold that there is no basis for dismissing the Election Commission’s appeal for lack of financial arrangements.
With respect to the standing of the Election Commission to appeal, we hold that standing was indeed present. We said in Jacobs v. Yates, supra, that the Election Commission had standing to question the qualifications of candidates. Clearly, the issue of candidate qualifications falls within the Election Commission’s duty to assure proper and lawful elections. The same holds true with regard to the Election Commission’s duty to uphold a valid election. In Rubens v. Hodges, supra, this court distinguished the Election Commission’s nominal role in an election contest between adversarial candidates and its role in an action seeking to void an election. In the latter case, we said the Election Commission’s function “is to promote fair elections.” Rubens, 310 Ark. at 454, 837 S.W.2d at 467. See also Phillips v. Earngey, 321 Ark. 476, 902 S.W.2d 782 (1995). That function extends to appealing perceived error by a circuit court in voiding a valid election.
As a final observation on this point, Jacobs urges that both Helton and the Election Commission admitted in their answers that the action brought by Jacobs was a civil action filed pursuant to Ark. Code Ann. §§ 7-5-801, et seq., which is the Election Contest Subchapter. We do not read the appellants’ answers as waiving their rights to contend that this was not an election contest. Rather, we read their answers as admitting that that is how Jacobs had couched his petition. This argument has no merit.
Accordingly, Jacobs’s motion to dismiss is denied.
II. Voiding the Election
We turn next to the appellants’ arguments that the circuit court erred in voiding Helton’s certification as the winner and declaring a vacancy- in nomination. Multiple arguments are presented by Helton and the Election Commission on this point. We consider the prevailing argument, however, to be that the circuit court in its May 19, 2000 order directed that no votes be certified for Jacobs. The court noted that it was too late to remove Jacobs’s name from the ballot, but clearly the order intended that any votes cast for Jacobs were to be of no effect and were not to be counted. We affirmed that decision in Jacobs v. Yates, supra. In accordance with the circuit court’s directive, the Election Commission marked through the tabulated votes for Jacobs in its certification of the election results.
Despite this history, all of Jacobs’s arguments made before the circuit court in connection with his June 15, 2000 petition and now before this court on appeal flow from his assertion that he received a majority of votes cast. That is a faulty premise because any votes cast for Jacobs in the May 23 primary election should not have been counted. No one disputes the disqualification of Jacobs and Tyler. Indeed, the parties stipulated to that fact in the case before us. Moreover, state law is clear that the names of ineligible candidates shall not be printed on the ballot. See Ark. Code Ann. § 7-5-207(b) (Repl. 2000). We are hard pressed, as a result, to give any credence to vote tallies that should not have been done in the first place. Were we to do so, we would be reversing our decision in Jacobs v. Yates, supra, where we explicitly said the votes should not be counted. In sum, Jacobs’s total vote is irrelevant and of no effect, and since his arguments all hinge on his contention that he received most of the votes cast, he cannot prevail.
It is also important to focus in this case on the relief requested by Jacobs in his June 15, 2000 petition for writ of mandamus and declaratory relief. He did not contend that Helton should be declared ineligible or disqualified before the November 7, 2000 general election. Thus, Jacobs did not invoke the procedure for determining candidate eligibility under State v. Craighead County Bd. of Election Comm’rs, supra. On the contrary, he stipulated that his sole prayer for relief was to have the position of Justice of the Peace, District 7, declared vacant under § 7-5-315(7) and to be filled according to law. Section 7-5-315(7) reads:
(7) (A) The votes received by any person whose name appeared on the ballot and who withdrew or died after the certification of the ballot or filing period ended shall be counted.
(B)(i) If the person received enough votes to win nomination or election, a vacancy in the nomination or election shall be declared.
(ii) (a) If the person received enough votes to qualify for a runoff, the person’s name shall appear on the runoff ballot; and
(b) If enough votes are cast for the person to win the runoff, then a vacancy in the nomination or election shall exist.
Ark. Code Ann. § 7-5-315(7) (Repl. 2000) (emphasis added). Thus, § 7-5-315(7), by its terms, applies only to cases in which a person dies or withdraws after certification of the ballot or after the filing period ends. It is not applicable to a case such as we have before us where a candidate has been disqualified before the primary election. Even if we accepted Jacobs’s argument, which we do not, § 7-5-315(7) determines a vacancy in nomination by counting votes. Again, in this case the votes cast for Jacobs are of no effect.
In its opinion, the circuit court relied on the case of Swepston v. Barton, 39 Ark. 549 (1882), in declaring a vacancy in nomination. The court specifically quoted from Swepston that “when a vote for an ineligible candidate is not declared void by statute, the vote she receives, if they are a majority or plurality, will be effectual to prevent the opposing candidate being chosen, and the election must be considered as having failed.” 39 Ark. at 555. See also Davis v. Holt, 304 Ark. 619, 804 S.W.2d 362 (1991). In Swepston, Swepston defeated Barton for the office of Crittenden County Sheriff by a majority of 165 votes at the general election. Thereafter, as part of the election contest, Barton contended that Swepston was ineligible because he had failed to account for or pay over certain revenues he collected for the county. This court did not decide Swepston’s eligibility because there was no ruling on that point by the circuit court.
We deem Swepston to be inapposite as precedent for this case for one critical reason. In Swepston, the ineligibility was asserted after the election in which Swepston had been a candidate and received a majority of the votes cast. In the case at hand, Jacobs was declared ineligible and disqualified as a candidate before the election took place and should not even have been on the ballot. This court has consistently drawn a clear distinction between causes of action that accrue pre-election and those that accrue post-election after the voters have spoken. See, e.g., Doty v. Bettis, 329 Ark. 120, 947 S.W.2d 743 (1997) (prior to election, election laws are mandatory; thereafter, they are directory only).
There is, finally, the point that Jacobs did not press for resolution of his petition for writ of mandamus and declaratory relief regarding a vacancy in nomination before the November 7 general election. As an unopposed candidate, Helton was assured of being certified the winner of the general election under state law. See Ark. Code Ann. § 7-5-315(1) (Repl. 2000). After the general election occurred and Helton was certified the winner, a declaration of a vacancy in nomination was not the appropriate remedy. The circuit court clearly erred in declaring a vacancy in nomination to exist.
We reverse the order of the circuit court and remand this case with the following instructions: (1) Arlanda Jacobs shall immediately cease holding the office of Justice of the Peace, District 7; (2) the order of the circuit court voiding the certificate of election granted to Roy Helton is reversed, effective immediately, and the certificate of election granted to Roy Helton is in full force and effect; and (3) Roy Helton shall immediately begin serving his term as Justice of the Peace, District 7.
Reversed and remanded.
After the petition was filed, Olloway moved to have her name removed from the style of the case and to dismiss the action with respect to her interests.
Judge Harvey L. Yates served as circuit judge for the circuit court until October 27, 2000, when he recused. Judge L.T. Simes, II, then became the circuit judge for the case. | [
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Donald L. Corbin, Justice.
This is a tort suit brought against two attorneys for conduct that arose out of an adoption scam. In early October 1996, attorney Gordon Humphrey advised attorney Ed Webb that he represented a birth mother who wished to place her baby for adoption. Humphrey was employed by the Madden Law Firm at the time. Webb initially tried to place the baby with a Connecticut couple, but that did not work out. Soon thereafter, Appellees Jon and Debbie Aldrich contacted Webb’s office regarding information about adopting a child. Webb advised them that he knew of an expected child who was available but that they needed to take action immediately for fear that the child would be placed elsewhere. Upon Webb’s advice, the Aldriches wrote two checks to Webb, totaling $7,500, for the birth mother’s medical expenses and Webb’s legal fee. Webb subsequently confirmed with Humphrey that he had a couple interested in adopting the baby, and he wrote Humphrey a check for $5,000. In January 1997, it was revealed that there was no birth mother or baby and there never had been. Humphrey later pled guilty to a federal criminal charge for his actions and was sentenced to two years’ imprisonment.
As a result of the incident, the Aldriches brought suit against Humphrey and Appellant Jean Madden in the Saline County Circuit Court. The claim against Madden was that she, as his employer, had been negligent in the hiring, retention, or supervision of Humphrey. The jury returned unanimous verdicts against Humphrey and Madden and assessed compensatory damages of $100,000, which were apportioned between Humphrey (seventy-five percent), Madden (twenty-four percent), and Webb (one percent). Additionally, the jury awarded punitive damages of $1,000,000 against Humphrey. Madden appeals from that judgment and from the trial court’s denial of her posttrial motions. She raises numerous points for reversal, one of which involves our construction of Ark. Code Ann. §§ 16-22-310 (Repl. 1999) and 16-114-303 (Supp. 1999). Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1 — 2(b)(6). We affirm.
I. Immunity
The first issue that we must address is Madden’s assertion that the trial court erred in finding that she was not entitled to immunity under section 16-22-310 and its counterpart, section 16-114-303. Madden asserts that she is immune from the Aldriches’ negligence claim because they were not her clients or Humphrey’s. Thus, she argues that there was no privity of contract, as required under sections 16-22-310 and 16-114-303. The trial court found that there was direct privity through an agency relationship, namely that Webb was an agent of the Aldriches who contracted with Humphrey, who was Madden’s agent, for the purpose of arranging an adoption. We agree with Madden that the trial court’s finding of direct privity was in error. Nonetheless, we affirm the trial court’s ruling that Madden was not entitled to immunity because she was not being sued in connection with the performance of professional services.
Sections 16-22-310 and 16-114-303 were enacted by the General Assembly in Act 661 of 1987, and both sections are identical as they pertain to this case. In pertinent part, the sections provide:
No person licensed to practice law in Arkansas and no partnership or corporation of Arkansas licensed attorneys or any of its employees, partners, members, officers, or shareholders shall be hable to persons not in privity of contract with the person, partnership, or corporation for civil damages resulting from acts, omissions, decisions, or other conduct in connection with professional services peformed by the person, partnership, or corporation, except for:
(1) Acts, omissions, decisions, or conduct that constitutes fraud or intentional misrepresentations!.] [Emphasis added.]
This court has held that “[t]he plain language of Ark. Code Ann. § 16-22-310 requires the plaintiff to have direct privity of contract with ‘the person, partnership, or corporation’ he or she is suing for legal malpractice.” McDonald v. Pettus, 337 Ark. 265, 271, 988 S.W.2d 9, 12 (1999) (emphasis added). Similarly, this court has held that section 16-22-310 “enunciates the parameters for litigation by clients against attorneys!-]” Clark v. Ridgeway, 323 Ark. 378, 388, 914 S.W.2d 745, 750 (1996) (emphasis added). This court has not heretofore been asked to construe this provision in any situation other than actions for legal malpractice or professional negligence. Thus, the question of whether this immunity extends to situations in which an attorney is being sued as an employer for negligently supervising an attorney-employee is one of first impression.
The basic rule of statutory construction is to give effect to the intent of the General Assembly. Barclay v. First Paris Holding Co., 344 Ark. 711, 42 S.W.3d 496 (2001); St. Paul Fire & Marine Ins. Co. v. Griffin Constr. Co., 338 Ark. 289, 993 S.W.2d 485 (1999). In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. If the language is plain and unambiguous and conveys a clear and definite meaning, there is no need to resort to rulés of construction. Id. Notwithstanding, statutes will not be given a literal interpretation if it leads to absurd consequences that are clearly contrary to legislative intent. Id.
In the present case, the suit was filed against Madden based on her actions or omissions as an employer pertaining to her supervision of her employee, Humphrey. The record reflects that the issue of immunity was presented to the trial court in a motion for summary judgment. In response to Madden’s motion, the Aldriches submitted two depositions given by Madden, one from this case, and the other from a different case involving a similar adoption scam by Humphrey. In those depositions, Madden admitted that when she hired Humphrey, she was aware that he had previously had his law license suspended by this court. She stated that Humphrey told her that the suspension had been the result of a charge that he had co-mingled funds from his general account with those in his client-trust account. She indicated that she had been satisfied with his explanation of the suspension, and that, accordingly, she did not attempt to verify his recitation of the events. She stated that although she initially had no concern in hiring him, she later developed concerns when she received a telephone call from a client in December 1995. According to Madden, the client told her that he had paid Humphrey $1,500 but that Humphrey was not doing anything on his case. She said that she was concerned because the fee had not been deposited in the firm’s bank account, She stated that she never felt comfortable with Humphrey’s explanation that he must have stuck the money in his pocket and left it at his house. She stated that she believed that it was highly probable that Humphrey had taken the client’s money for himself and that he only brought it back because he had been caught.
Madden also stated that during the first half of 1996, she had become concerned about Humphrey’s depressed mental state, which included suicidal thoughts, and his bad financial situation. Regarding the former concern, she stated that she was afraid that he would miss a court date or other deadline. She then began to closely monitor his mail, and she started taping his office telephone calls. She indicated that she had a question about whether Humphrey might have been pocketing fees for himself, rather than bringing them through the firm, but she was never able to catch him at it. For all her concerns, Madden stated that she had thought about firing him, but she decided not to because she needed his cooperation and testimony in a lawsuit that had been filed against her.
Based on Madden’s statements, the Aldriches argue that she is not immune from their negligence claim. They contend that sections 16-22-310 and 16-114-303 provide immunity to attorneys only when they are sued for legal malpractice or professional negligence. We agree that the plain language of these provisions demonstrates that the immunity provided is limited to suits based on conduct in connection with professional services rendered by the attorney.
Here, the actions or omissions upon which this negligence claim is based do not fall within the parameters of professional services. Madden admitted that she was concerned that Humphrey might have been taking fees from clients and not sharing them with the firm. She also expressed concerns that he was taking money from clients and not providing any services for them. At a minimum, she admitted concerns that Humphrey’s mental state during 1996 was such that she was afraid that he would miss important deadlines or court dates. These concerns and Madden’s subsequent actions, or inactions, were not connected with the performance of professional services. It does not require an attorney’s professional skills to suspect that another attorney may be stealing money, either from the firm or from clients. Accordingly, we hold that the immunity provided in sections 16-22-310 and 16-114-303 is not available under the facts and circumstances of this case. It is thus irrelevant that there was no direct privity of contract between Madden and the Aldriches. We will affirm the trial court when it has reached the right result, even though it may have announced the wrong reason. See Ouachita Trek & Dev. Co. v. Rowe, 341 Ark. 456, 17 S.W.3d 491 (2000); Malone v. Malone, 338 Ark. 20, 991 S.W.2d 546 (1999).
II. Negligent Supervision
For her second point for reversal, Madden argues that there was not substantial evidence to support the jury’s verdict that she was negligent in her supervision of Humphrey. She argues further that there was not substantial evidence that Humphrey was her employee. The jury’s verdict reflects the finding that Madden was negligent in the hiring, retention, or supervision of Humphrey. We limit our review to the sufficiency of the evidence to support a finding of negligent supervision, as we believe that issue is dispositive. To affirm, we need only determine that there was substantial evidence to support the verdict, viewing the evidence and all reasonable inferences arising therefrom in a light most favorable to the appellee. Ethyl Corp. v. Johnson, 345 Ark. 476, 49 S.W.3d 644 (2001). Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Id.
Liability for negligent supervision is based upon the unique relationship between employer and employee. Regions Bank & Trust v. Stone County Skilled Nursing Facil., Inc., 345 Ark. 555, 49 S.W.3d 107 (2001) (citing Niece v. Elmview Group Home, 929 P.2d 420 (Wash. 1997)). Under this theory, employers are subject to direct liability for the negligent supervision of employees when third parties are injured as a result of the tortious acts of employees. Id.; American Auto. Auction, Inc. v. Titsworth, 292 Ark. 452, 730 S.W.2d 499 (1987); Sparks Reg’l Med. Ctr. v. Smith, 63 Ark. App. 131, 976 S.W.2d 396 (1998). The employer’s liability rests upon proof thathe employer knew or, through the exercise of ordinary care, should have known that the employee’s conduct would subject third parties to an unreasonable risk of harm. Regions Bank, 345 Ark. 555, 49 S.W.3d 107.
This theory is separate and distinct from the respondeat superior theory of vicarious liability, as a claim of negligent supervision does not preclude recovery where the acts committed by the employee are intentional and outside the scope of employment. Titsworth, 292 Ark. 452, 730 S.W.2d 499. In other words, a claim of negligent supervision “provides a remedy to third parties who otherwise would not be able to recover under respondeat superior because of the scope of employment requirements.” Sparks, 63 Ark. App. at 135, 976 S.W.2d at 399 (quoting 27 Am. JUR. 2d Employment Relationship § 472 (1996) (footnote omitted)). As with any other negligence claim, to prove negligent supervision, a plaintiff must show that the employer’s conduct was a proximate cause of the injury and that the harm to third parties was foreseeable. Id. It is not necessary that the employer foresee the particular injury that occurred, only that he or she reasonably foresee an appreciable risk of harm to others. See Ethyl Corp., 345 Ark. 476, 49 S.W.3d 644; Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998). We turn now to the evidence presented on this issue.
The jury heard testimony on this issue from Janie Pelkey, Stan Batten, Ed Webb, Humphrey, and Madden. Pelkey testified that she had worked for the law firm from the middle of 1994 to June or July of 1996, and that she had been Humphrey’s personal secretary. Pelkey characterized Madden’s relationship to Humphrey as one of supervisor-employee. During her tenure, Pelkey became aware of several occurrences involving accusations against Humphrey for taking money from clients and not doing what he was hired to do. On one of those occasions, she received a telephone call from a man who said that he had given Humphrey $1,000 to file suit on his behalf, and he wanted to know why the suit had not been filed. Pelkey reported this to Madden, and Madden told her she would take it up with Humphrey. On another occasion, Pelkey and Madden were seated adjacent to each other when Madden received a telephone call. Madden told Pelkey that the caller said that she had sent in money to be invested by Humphrey and she wanted to know the status of her investment. Again, Madden told Pelkey that she would ask Humphrey about the matter. As time went on, more complaints surfaced about Humphrey’s work. The last occurrence that Pelkey recalled was when a client telephoned Madden and inquired about $4,000 that the client had wired to Humphrey regarding an adoption. When Madden asked her about the money, Pelkey told her that she was not aware of any money being sent for an adoption. Pelkey also testified to some unusual behavior by Humphrey. Particularly, she stated that a woman named Kim would come to the law firm once a week, and that Humphrey always talked to her in his office with the door shut. Pelkey stated that the woman would always leave with a check, and that she assumed that Humphrey was paying her off because he had not taken care of a legal matter for her.
Pelkey stated that as a result of the telephone calls from clients, the office sat down as a group, minus Humphrey, to determine whether the complaints against Humphrey were true. Pelkey stated that she and Madden discovered ledger sheets that did not match with what clients said that they had paid Humphrey. According to Pelkey, Madden told her that she was considering withholding money from Humphrey’s paycheck to cover the missing amounts. At one point, Madden told Pelkey that she was going to fire Humphrey, and that she would send Stan Batten, the firm’s paralegal, to retrieve the firm’s belongings from Humphrey’s house. All of these actions took place prior to June or July 1996, when Pelkey left the firm, and weU in advance of the date that Humphrey took $5,000 from the Aldriches.
Batten testified, via videotaped deposition, that he had worked as a paralegal for the Madden Law Firm from late 1995 through May 1997. Batten initially corroborated Pelkey’s testimony in a letter that he wrote to the Aldriches’ attorney. He later wrote a second letter, however, stating that the first letter had been written under duress, due to the stress of his mother’s recent death and the alleged harassment that he had received from the Aldriches’ attorney. During the deposition, counsel for the Aldriches attempted to impeach Batten’s credibility with his inconsistent statements. Batten maintained that he had no information that would be material to this case. He revealed, however, that Madden was currently representing him in his bankruptcy case.
Ed Webb testified that he wrote a check to Humphrey for $5,000 based on his representation to Webb that his cousin was pregnant and wanted to place her baby for adoption. Webb stated that he and his office staff had repeatedly telephoned the Madden Law Firm during the month of October 1996, in an attempt to get in touch with Humphrey. He stated that he became aware of the fact that Humphrey had left the Madden Law Firm sometime during November 1996. Subsequently, Webb learned from another attorney that Humphrey had lied about the baby in the Aldriches’ case and a couple of other cases. Webb finally confronted Humphrey about the situation in February 1997. Webb also testified that in dealing with Humphrey, he relied on the fact that Humphrey was working for Madden’s firm at the time. He explained that he respected the Madden Law Firm’s name and reputation and the firm’s decision to hire Humphrey.
Humphrey testified that he worked for Madden as an independent contractor, and that his salary was based on a percentage of the gross amount of fees that he generated. He stated that he handled his own cases in the manner he wanted to handle them, and that Madden had no control over his cases. He admitted, however, that when he left the firm, his files, and presumably his clients, remained with Madden. He testified that during the middle part of 1996, while he was still working at Madden’s firm, his “mental state had kind of turned to mush.” He confirmed Pelkey’s testimony concerning the incident in late 1995 involving the client who had complained that he had given Humphrey $1,000 or $1,500 to take his case and nothing had been done. Humphrey downplayed the incident, stating that he had taken the fee from the client on a Friday afternoon, and that he had cashed the check that afternoon and took the money home with him, since Madden had already left for the day. Regarding his misrepresentations to the Aldriches, Humphrey claimed that there was a baby available when he initially took their $5,000. He admitted, however, that he kept their money even after he became aware that there would be no baby for them to adopt.
Madden testified that Humphrey had worked for her law firm from 1992 through October 1996. She initially paid him an hourly wage, but later paid him on commission, giving him forty percent of the fees that he produced. She stated that he controlled his own cases, and that she only looked for the results. She admitted, however, that she had routine meetings with Humphrey wherein she would check on the status of his cases. She also admitted that there were situations where clients had called with complaints about Humphrey, and that she took it upon herself to check into them. She acknowledged the incident that occurred in late 1995, of which Pelkey and Humphrey testified. She concluded that there was nothing to this complaint and that the client was overly anxious about his case. She admitted that she was aware at the time she hired Humphrey that his law license had been suspended for one year for co-mingling client funds. She stated that the only knowledge she had of the reasons his license was suspended came from Humphrey himself, and that she had done nothing independently to verify his statements. She further admitted that she had Humphrey’s office telephone tapped sometime around August or September Í996, but she denied that she had any reason to think that he was taking money from clients and not reporting it. She also admitted that on one occasion, she had asked Batten to follow Humphrey when he left the office. Perhaps more significantly, Madden admitted that she had received telephone calls from a woman and her aunt stating that they were having trouble getting in touch with Humphrey regarding his representation of a woman who was going to let them adopt her baby.
Excerpts from Madden’s depositions, which were read to the jury, revealed that her office practices toward Humphrey changed after the 1995 incident involving the $1,000 or $1,500 fee taken by Humphrey. She stated that she became very observant of Humphrey after that happened. She paid attention to who called him, she watched his mail, and she tapped his office telephone. Her deposition also revealed that the reason she did not fire Humphrey was because she was being sued and needed his favorable testimony for that trial. Finally, when asked whether she had developed a suspicion that Humphrey may have been taking money from clients and not reporting it to her, Madden stated: “I knew something was wrong but I didn’t necessarily think that was it.”
The foregoing testimony constitutes substantial evidence that Madden was negligent in supervising Humphrey, and that her negligence was a proximate cause of the Aldriches’ damages. The evidence demonstrated that Madden knew or, in the exercise of ordinary care, should have known that Humphrey would act in a way that would subject third parties to an unreasonable risk of harm. It is of no consequence that she had no personal knowledge about Humphrey’s misrepresentations to the Aldriches. She was certainly put on notice by the prior complaints that Humphrey was not performing his duties according to the rules of professional conduct. At a minimum, she knew that Humphrey had taken money from clients for specific purposes and had not used the funds accordingly. She knew that ledgers kept by his secretary were not matching up with what clients were telling her they had paid Humphrey. Moreover, there was evidence that she knew that Humphrey had taken $4,000 from a woman for purposes of arranging an adoption, and that the woman was having difficulty getting in touch with Humphrey about the matter. There was thus substantial evidence that Madden was negligent in supervising Humphrey.
There was also substantial evidence demonstrating that Humphrey was Madden’s employee. In Blankenship v. Overholt, 301 Ark. 476, 786 S.W.2d 814 (1990), this court set out ten factors to be considered in determining whether one is an employee or an independent contractor. The principal factor is the extent of control that the master may exercise over the details of the work. Arkansas Transit Homes, Inc. v. Aetna Life & Cas., 341 Ark. 317, 16 S.W.3d 545 (2000). It is the right to control, not the actual control, that is determinative. Id. Other factors include whether the one employed is engaged in a distinct occupation or business; whether the employer furnishes the tools and workplace for the job; the length of time the person is employed; and whether the work is part of the regular business of the employer. Id. Generally, the question of employment status is a question of fact for the jury to resolve. See National Bank of Commerce v. HCA Health Servs. of Midwest, Inc., 304 Ark. 55, 800 S.W.2d 694 (1990); Johnson Timber Corp. v. Sturdivant, 295 Ark. 622, 752 S.W.2d 241 (1988).
Here, the evidence showed that Humphrey worked for Madden for over four years. Madden supplied the workplace and the tools to enable Humphrey to practice law out of her office. Humphrey was clearly engaged in the same business as Madden, even though they may have had separate areas of specialty. More importantly, Madden had the right to control Humphrey’s work. She had access to his case files, and she routinely reviewed them to determine the status of the cases. She further had control over his workplace, as she admitted that she had bugged his office and tapped his telephone. Finally, her testimony evidenced her belief that she had the ultimate right of control over him, as she indicated that she could have fired him and had thought about doing so. Thus, there was substantial evidence to support the jury’s finding that Humphrey was Madden’s employee. It is of no avail that Humphrey may have initially been an independent contractor. This court has held that “when an employer goes beyond certain limits in directing, supervising, or controlling the performance of the work, the relationship changes from employer and independent contractor to master and servant.” Blankenship, 301 Ark. at 478, 786 S.W.2d at 815 (citing Meyer v. Moore, 195 Ark. 1114, 115 S.W.2d 1087 (1938)). The evidence clearly demonstrates that the relationship changed around the time that complaints about Humphrey were being brought to Madden’s attention.
Lastly, we are not persuaded by Madden’s argument that proximate cause is lacking because Humphrey could have made the false representations about the baby regardless of whether he was working for her or was self-employed. This is pure speculation on Madden’s part. The fact is that Humphrey was employed by Madden at the time that he made the fraudulent representations about the baby to the Aldriches’ attorney. Moreover, this argument overlooks Webb’s testimony that in trusting Humphrey’s representations about the baby, he relied on the fact that Humphrey was employed by the Madden Law Firm. Proximate cause is defined as “that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produced the injury, and without which the result would not have occurred.” City of Caddo Valley v. George, 340 Ark. 203, 213, 9 S.W.3d 481, 487 (2000) (emphasis added) (quoting Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 181, 952 S.W.2d 658, 662 (1997)). When there is evidence to establish a causal connection between the negligence of the defendant and the damage, it is proper for the case to go to the jury. Id.; Dodson v. Charter Behav. Health Sys., Inc, 335 Ark. 96, 983 S.W.2d 98 (1998). Under the circumstances, we cannot say that it was error for the jury to conclude that Madden’s negligence in failing to properly supervise Humphrey was a proximate cause of the Aldriches’ injuries.
III. Evidentiary Rulings
For her third point for reversal, Madden argues that the trial court erred in (1) allowing Janie Pelkey to testify; (2) admitting Batten’s prior written statement; (3) allowing the Aldriches’ attorney to read to the jury excerpts of Madden’s deposition given in another case; (4) admitting a doctor’s letter regarding Debbie Aldrich’s health; and (5) refusing to allow Madden to introduce a written chronology of events made by the Aldriches. We note at the outset that the decision to admit or refuse evidence is within the trial court’s discretion, and this court will not reverse the trial court’s ruling absent an abuse of discretion and a showing of prejudice. See Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001); Aka v. Jefferson Hosp. Ass’n, Inc., 344 Ark. 627, 42 S.W.3d 508 (2001). We find no merit to any of these claims.
Madden first argues that the trial court erred in allowing Pelkey to testify, because she had no personal knowledge of Humphrey’s misrepresentation to the Aldriches about the nonexistent baby. This argument is misplaced. The record demonstrates that Pelkey’s testimony was confined to her personal observations of what had occurred at the Madden Law Firm and the communications that Madden had with her regarding client complaints about Humphrey. Her testimony was relevant to the issue of what Madden knew or should have known about Humphrey’s actions. Accordingly, there is no error on this point.
Madden next argues that the trial court erred in permitting the Aldriches to admit a copy of the first letter written by Batten to the Aldriches’ attorney. She argues that the letter was prejudicial and that it should not have been admitted as substantive proof, because Batten had recanted the statements in that letter and had denied their truth in his videotaped deposition. The record reflects that Batten’s deposition was played to the jurors in its entirety. The contents of the letter were read to Batten during that deposition, without objection from Madden. There is no prejudice in admitting evidence that is merely cumulative or repetitious of other evidence that is admitted without objection. See Eliott v. State, 342 Ark. 237, 27 S.W.3d 432 (2000); Thompson v. Perkins, 322 Ark. 720, 911 S.W.2d 582 (1995). Moreover, any concern about the improper use of this evidence could have been resolved with an instruction to the jury that the letter should not be considered as substantive evidence of the statements made therein, and that it should only be considered on the issue of Batten’s credibility. Madden made no request for such a limiting instruction. When evidence is admissible for one purpose but not for another, an objection is wholly unavailing unless the party seeks an instruction to limit the evidence to its admissible purpose. See Ark. R. Evid. 105; Kennedy v. State, 344 Ark. 433, 42 S.W.3d 407 (2001). There is no reversible error on this point.
Madden also asserts that the trial court erred in allowing the Aldriches’ attorney to read into the record portions of her deposition given in another case, wherein she was being sued as a result of another adoption scam committed by Humphrey. She argues that the excerpts were irrelevant and that there was no basis for allowing them into evidence. She does not deny that the statements were made by her, and she does not assert that she was prejudiced by their admission. As stated above, this court will not reverse absent a showing of prejudice. Dodson, 345 Ark. 430, 47 S.W.3d 866; Aka, 344 Ark. 627, 42 S.W.3d 508.
Madden next challenges the trial court’s admission of a letter written by Debbie Aldrich’s physician, pertaining to her general health. The record reflects that the letter was admitted to rebut Madden’s contention that Debbie had been less than forthcoming about her health to the social worker who performed their adoption home study. The contents of the letter were of no consequence to the claim against Madden. Indeed, the record reflects that Madden only objected to the letter on the ground that it was not properly authenticated and contained hearsay. The trial court denied the objection on the ground that it was not being offered for the truth of the statements made therein. Madden then asked for a cautionary instruction to the jury, and the trial court gave one. We are thus at a loss as to how Madden was prejudiced by admission of this evidence, especially since she received the alternative relief requested. See Greene v. State, 343 Ark. 526, 37 S.W.3d 579 (2001).
Lastly, Madden argues that the trial court erred in refusing to admit a written chronology of events prepared by the Aldriches for their attorney. The chronology showed that the Aldriches may have believed, initially, that their attorney, Ed Webb, was partly to blame for their problems. Madden contended that the written statement was an admission by a party opponent and was relevant to her third-party complaint against Webb. Counsel for the Aldriches did not object to admitting the chronology, so long as it was read into the record as a whole. The trial court initially admitted the written statement, but later reconsidered that ruling. Madden has offered nothing in the way of convincing argument or legal authority that would demonstrate that the trial court abused its discretion in denying admission. This, alone, is reason to affirm. See Dodson, 345 Ark. 430, 47 S.W.3d 866; City of Van Buren v. Smith, 345 Ark. 313, 46 S.W.3d 527 (2001). Moreover, she has failed to demonstrate how that ruling prejudiced her, as she was allowed to use information contained in the chronology to impeach the Aldriches’ testimony. We thus affirm the trial court’s ruling on this issue.
IV Evidence of Similar Acts
For her fourth point for reversal, Madden argues that the trial court erred in allowing evidence showing that Humphrey had been involved in similar adoption scams around the same time that he deceived the Aldriches. She argues further that the trial court erred in denying her motion for mistrial. The evidence in question came in first through Jon Aldrich, then through Debbie Aldrich and Ed Webb. The Aldriches assert that Madden has failed to demonstrate any prejudice, because the evidence came out during her cross-examination of Jon Aldrich. They assert further that the motion for mistrial was properly denied because Madden failed to seek a cautionary instruction to the jury. We agree.
During cross-examination of Jon Aldrich, Madden’s attorney, Mr. Bingham, asked the witness about the decision not to include Ed Webb as a defendant in their lawsuit. The following colloquy occurred:
Q. Mr. Aldrich, you said you didn’t sue Mr. Webb in light of the facts that came out. The facts didn’t come out until after you filed this lawsuit, is that right?
A. No.
Q. What’s not right?
A. The facts started coming out in April of ‘96, actually March of ‘96 that there were other adoptions through the Jean Madden Law Firm —
Q. I’m going to stop you right there.
A bench conference then ensued, during which the Aldriches’ attorney, Mr. Ginnaven, argued that the witness should be allowed to answer the question. The trial court agreed and instructed the witness accordingly. The following then occurred:
A. Okay, in March there’s a newspaper article in —
Mr. Bingham: Your Honor, that’s where he’s going.
The COURT: Well, that’s non-responsive.
Mr. BINGHAM: I agree with you. Let me go with another question.
Mr. GlNNAVEN: Well, he — I’m sorry, I want to make the record clear. Mr. Bingham is asking and trying to impeach this testimony, why did he not sue Mr. Webb? He said he didn’t know anything about other facts because they didn’t come out until sometime later. Mr. Aldrich is trying to explain to the Jury how he became aware that Mr. Webb wouldn’t be responsible because the same thing had happened to other couples. He’s opened the door to this line of inquiry.
At that point, Mr. Bingham objected and asked for a mistrial based on Mr. Ginnaven’s statements. The trial court denied the motion, and instructed the witness to answer the questions as asked.
It is well settled that a mistrial is a drastic and extreme remedy that should be granted only when there has been error so prejudicial that justice cannot be served by continuing the trial or when fundamental fairness of the trial itself has been manifesdy affected. See Farm Bureau Mut. Ins. Co. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000); Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998). The trial court has wide discretion in granting or denying a motion for a mistrial, and we will not disturb the court’s decision absent an abuse of discretion or manifest prejudice to the movant. Id. A mistrial will only be granted where any possible prejudice could not have been removed by an admonition to the jury. Id. When there is doubt as to whether the trial court abused its discretion in denying a mistrial, a failure to request an admonition will negate a mistrial motion. Id.
Here, Madden has failed to demonstrate how she was prejudiced by the admission of the testimony, as she opened the door to this line of questioning. See id. The same thing can be said about similar testimony elicited during Madden’s cross-examination of Debbie Aldrich. Moreover, any possible prejudice resulting from the testimony or counsel’s statements could have been cured by an admonition to the jury. Because Madden failed to request a cautionary instruction or other admonition to the jury, we do not reverse the trial court’s ruling on this issue.
Additionally, the testimony that Madden complains about from Webb was admitted without objection. Webb stated on direct that another attorney had told him that “most likely there was not going to be a baby in our case and a couple of others.” Madden did not object. In fact, when Madden did object later in Webb’s testimony, she failed to obtain a ruling on her objection from the trial court. It is well settled that to preserve a point for appeal, a proper objection must be asserted at the first opportunity. See Foote, 341 Ark. 105, 14 S.W.3d 512; Edwards, 335 Ark. 470, 984 S.W.2d 366. Moreover, failure to obtain a ruling from the trial court is a procedural bar to our consideration of the issue on appeal.- See Barker v. Clark, 343 Ark. 8, 33 S.W.3d 476 (2000); Ross Explorations, Inc. v. Freedom Energy, Inc., 340 Ark. 74, 8 S.W.3d 511 (2000). Accordingly, we find no merit to this point, and we affirm.'
V. Motion for New Trial
For her fifth point for reversal, Madden argues that the trial court erred in denying her motion for a new trial on the grounds that (1) the Aldriches’ attorney engaged in improper conduct during closing argument, and (2) the jury could hear remarks made by the attorneys during bench conferences. We do not reach the merits of the first argument, as the record reflects that Madden voiced no objection during closing argument. As stated above, to preserve a point for appeal, a proper objection must be asserted at the first opportunity. See Foote, 341 Ark. 105, 14 S.W.3d 512; Edwards, 335 Ark. 470, 984 S.W.2d 366.
Likewise, Madden’s second argument is also procedurally barred. She contends that members of the jury were privileged to the content of bench conferences during the course of the trial due to the courtroom’s sensitive microphone and sound system. Particularly, she contends that the jury heard discussions about an unrelated adoption. The trial court’s order denying the motion for new trial does not reflect a ruling on this issue. The failure to obtain a ruling from the trial court is a procedural bar to our consideration of the issue on appeal. See Barker, 343 Ark. 8, 33 S.W.3d 476; Ross Explorations, Inc., 340 Ark. 74, 8 S.W.3d 511. We thus affirm the trial court’s denial of the motion for new trial.
VI. Miscellaneous Points
The final points raised by Madden are that the trial court erred in (1) allowing the jury to vicariously impute Humphrey’s liability to her, based on the theory of respondeat superior; (2) allowing the jury to assess liability for fraud; (3) allowing the jury to assess damages for mental anguish; and (4) instructing the jury that Humphrey had admitted liability. We discuss these points together, as they are all premised on Madden’s apparent misunderstanding of the jury’s verdict against her.
The record reflects that the jury’s verdict was based on Madden’s own negligent conduct, not on her vicarious liability for Humphrey’s actions under the theory of respondeat superior. The judgment reflects that the issues were submitted to the jury on six interrogatories, three pertaining to liability and three pertaining to the assessment and apportionment of damages. The second interrogatory provided: “Do you find from a preponderance of the evidence that Jean Madden was negligent for the hiring, retention, or supervision of Gordon Humphrey, as defined in the instructions, which was a proximate cause of any damages?” The jury answered unanimously, “Yes.” This finding was the only basis for Madden’s liability in this case. The interrogatories did not seek or create a finding of vicarious liability. Accordingly, there is no merit to the first allegation of error.
Similarly, there is no merit to Madden’s argument that the trial court erred in allowing the jury to assess liability for fraud. The trial court did not instruct the jury as to fraud, and the jury did not make any finding of fraud against Madden. Indeed, Madden acknowledges that the jury was not instructed on this issue. There is also no merit to the argument that the trial court erred in allowing the jury to assess damages for mental anguish. The jury did not assess, nor was it instructed to assess, such damages against Madden. To the contrary, the jury was only instructed to consider such damages against Humphrey. Finally, we reject Madden’s argument that the trial court erred in instructing the jury that Humphrey admitted liability for the damages sustained by the Aldriches. She contends that this instruction, combined with other alleged errors, prejudiced her because it allowed the full extent of Humphrey’s intentional wrongdoing to be imputed to her. Again, there is no merit to this point because the jury made no finding of vicarious liability against Madden.
In sum, we affirm the trial court’s ruling that Madden was not immune from civil damages, under sections 16-22-310 and 16-114-303, for her negligence in faffing to supervise her employee, Humphrey. We also conclude that there is substantial evidence to support the jury’s verdict against Madden for negligent supervision. We further find no merit to any of the allegations of error raised by Madden on appeal. We thus affirm the judgment against Madden. Because we affirm on direct appeal, it is not necessary that we address the point on cross-appeal.
Affirmed on direct appeal; affirmed on cross-appeal.
BROWN and Imber, JJ., dissent. | [
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Per Curiam.
Petitioner, Kenneth Hawkins, by his attorney Tjuana C. Byrd, Deputy Public Defender for the Sixth Judicial District, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on her part.
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
A copy of this per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. | [
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Robert L. Brown, Justice.
This appeal concerns the jurisdiction of a circuit court to modify the criminal sentence of appellant Terri L. Bagwell after it had been placed into execution. More specifically, it concerns the applicability of Act 1569 of 1999, now codified at Ark. Code Ann. §§ 5-4-301, 5-4-303, 5-4-304, 5-4-306 (Supp. 1999), and whether it applies to offenses that occurred in 1997. We hold that Act 1569 does not apply to the facts of this case. We further hold that the circuit court lacked jurisdiction over Bagwell to modify the original sentence, and we reverse and remand.
The facts are these. On October 6, 1997, Bagwell was charged with possessing drug paraphernalia, a Class “C” felony, and possession of marijuana, a Class “A” misdemeanor. The offense date for both offenses was October 2, 1997. On October 17, 1997, she was charged for the same two offenses, with a second offense date — October 6, 1997.
On June 3, 1998, Bagwell pled nolo contendere to the two felony counts of possession of drug paraphernalia and the two misdemeanor counts of possession of marijuana. In her Plea Statement, she agreed to a five-year suspended sentence and a fine of $500. On that same date, she executed the Terms and Conditions of Suspended Sentence with the circuit court wherein she agreed to that suspended sentence and fine as well as payment of court costs of $150, drug rehabilitation, payment of the costs and fine at a rate of $50 per month beginning sixty days after completion of drug rehabilitation, fifty hours of community service, and regular reporting to her probation officer. Also on June 3, 1998, the circuit court entered an order restricting her driving privileges for six months. On June 19, 1998, the court entered its Judgment and Disposition Order, sentencing Bagwell to five years suspended and one-year probation on each of the two felonies and one-year suspended and one-year probation on each of the two misdemeanors.
On September 17, 1998, the prosecuting attorney filed a petition to revoke and/or show cause. In that petition, the prosecutor alleged that as of that date, Bagwell had failed to attend drug counseling as ordered by the court. Accordingly, the prosecutor asserted that Bagwell had violated the terms and conditions of her suspended sentence. On November 13, 1998, the prosecutor filed an amended petition to revoke and/or show cause, stating the same grounds but adding that on October 30, 1998, Bagwell’s probation officer had requested a petition to revoke due to her failure to report, failure to pay fees, and failure to follow the rules as ordered. After two continuances, the circuit court held a hearing on the petition to revoke on July 6, 1999. At the hearing, Delores Biocic, Bagwell’s parole/probation officer, testified that she had failed to complete a residential drug treatment program, failed to report, and failed to complete an intensive twelve-step program. Bagwell testified that she stopped reporting to the twelve-step program because she was not “feeling good.” She stated that she had several cysts on her ovaries and was to have surgery. She further testified that she was diagnosed a year before and had been in constant pain. She stated that the reason she failed to complete the residential rehabilitation program was due to the fact that she had no one to watch her dog.
At the conclusion of the hearing, the circuit court ruled as follows:
The Court finds that the State has shown by a preponderance of the evidence that you have violated the terms and conditions of your suspended sentence. What the Court is going to do is leave the suspended sentence in force and effect, which will give you an opportunity to take some other steps somewhere down the fine in your fife, but the Court is going to sentence you to the Regional Punishment Facility. You are sentenced to — I believe the maximum time I can do that is a hundred and twenty (120) days, and that is what I’m going to do. I’m going to sentence you to a hundred and twenty (120) days at the Regional Punishment Facility and your suspended sentence will, however, remain in effect.
Bagwell appealed the circuit court’s ruling to the court of appeals as a no-merit appeal. The court of appeals ordered briefing on the effect of Act 1569 of 1999, which empowers a circuit court to modify an executed sentence, on this court’s prior case law. The court of appeals then certified the matter to this court for determination.
The issue for this court to resolve is whether the circuit court had jurisdiction over Bagwell on July 6, 1999, to enter an additional sentence against her of 120 days in the Regional Punishment Facility. Bagwell contends that Act 1569 was effective on April 15, 1999, which was long after her offenses were perpetrated and long after her sentence had been put into execution. Thus, according to her theory, the circuit court was without jurisdiction over her to modify her sentence. The State replies that Act 1569 did not change the sentencing statute. Moreover, the State argues that Act 1569 was in effect on July 6, 1999, when the circuit court modified the sentence. Thus, it contends, there was no retroactive application of the Act.
Act 1569, which, again, was effective as of April 15, 1999, amended § 5-4-301 (d) to empower circuit courts to modify original sentences, following revocation hearings, up to the limits set in §§ 5-4-303, 5-4-304, and 5-4-306. This court has long held that a trial court loses jurisdiction to modify or amend an original sentence once that sentence is put into execution. See Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2001); Dehart v. State, 312 Ark. 323, 849 S.W.2d 497 (1993); Jones v. State, 297 Ark. 485, 763 S.W.2d 81 (1989) (citing Toney v. State, 294 Ark. 473, 743 S.W.2d 816 (1988); Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987)). We have referred to the jurisdiction lost as subject-matter jurisdiction with respect to defendant’s sentence. See Pike v. State, supra. We have further held that a plea of guilty, coupled with a fine and a suspension of imposition of sentence of imprisonment constitutes a conviction. See id. (citing David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985)). Our holdings are in accord with statutory law. See Ark. Code Ann. § 5-4-301 (d) (Repl. 1997, Supp. 1999).
In the case of Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994), this Court reaffirmed its prior holdings and held that a plea of guilty, coupled with a fine, and a suspended imposition of sentence, constituted a conviction, which deprived the circuit court of jurisdiction over the defendant to amend or modify a sentence after it had been placed into execution. We held to the same effect in McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998). As a result, the issue before us is one of jurisdiction. Jurisdiction was not raised by Bagwell in circuit court, but a circuit court’s loss of jurisdiction to modify a sentence can be raised by this court on our own motion. See Jones v. State, supra.
We hold that because Act 1569 was not in effect at the time the crime was committed, it cannot be invoked by the State to apply to the facts of this case. See Meadows v. State, 320 Ark. 686, 899 S.W.2d 72 (1995); State v. Galyean, 315 Ark. 699, 870 S.W.2d 706 (1994); State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993). Thus, the circuit court had no jurisdiction to modify its original sentence which had been executed. We further observe that Act 1569 did not contain a clause stating that the Act would take effect retroactively. In the absence of such a clause, we have held that we will apply an Act prospectively only. See State v. Galyean, supra; State v. Murphy, 315 Ark. 68, 864 S.W.2d 842 (1993). Finally, we note that the constitutionality of Act 1569 was not raised as an issue in this case, and, for that reason, we do not address it.
We reverse and remand this case with instructions to vacate the 120-day sentence in the Regional Punishment Facility. The original Judgment and Disposition Order of June 19, 1998, will remain in full force and effect.
Reversed and remanded.
The Emergency Clause of Act 1569 of 1999 specifically makes reference to our holding in McGhee v. State, supra. | [
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Per Curiam.
Appellant 'Myron Kent George moves the court for a rule on clerk and shows this court as follows. Court Reporter Nila Keels was not a certified court reporter at the time of the jury trial in this matter held in Greene County on January 22 and 23, 2001. Following the trial, George was found guilty as an accomplice to manufacturing methamphetamine and possession of the same substance. A notice of appeal was filed February 9, 2001. Thereafter, a motion was filed for a 90-day extension of time for filing the record, and an order was entered extending the time until August 9, 2001. As of this writing, no transcription of the trial testimony has been filed.
On August 8, 2001, George tendered to the Clerk of the Supreme Court the Greene County Circuit Clerk’s record in this case without the transcription of testimony. On that same date, he filed the motion now before us requesting that the partial record from the Greene County Circuit Clerk’s office be filed to comply with the August 9, 2001 deadline. The State does not object to George’s motion but urges this court to follow the same procedure as it did in Mitchell v. State, 345 Ark. 359, 45 S.W.3d 846 (2001) (per curiam), where we required the attorneys of record to certify to the Supreme Court Clerk by affidavit that the record was “true, accurate, and complete.” Mitchell, 345 Ark. at 361, 45 S.W.3d at 848.
We first observe that there is no way that the Mitchell procedure can be followed in this case because the tendered record is not complete in that it does not include the transcribed trial testimony. It is imperative that this testimony be transcribed immediately. We direct Judge Victor Hill of the Greene County Circuit Court to take whatever actions are necessary to secure the prompt certification of a full and complete record for appeal in this matter. See Ross v. State, 344 Ark. 623, 42 S.W.3d 483 (2001) (per curiam).
Motion denied. | [
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W.H. “Dub” Arnold, Chief Justice.
The State of Arkansas brings the instant appeal challenging the Saline County Circuit Court’s decision that appellee, William Andrew Hooks, was entided to a self-defense jury instruction on the use of nondeadly physical force although he fired a gun at an occupied vehicle. The State contends that our jurisdiction is authorized pursuant to Ark. R. App. P. — Crim. 3(c) (2001); we disagree and dismiss the appeal.
Background
A jury acquitted Hooks of one count of committing a terroristic act, two counts of first-degree terroristic threatening, and two counts of aggravated assault. Simultaneously, the jury convicted him of the following misdemeanor offenses: (1) fleeing by foot; (2) fleeing by vehicle; (3) driving while intoxicated; (4) first-degree criminal mischief; (5) disorderly conduct; (6) reckless driving; and (7) driving on a suspended license. The trial court sentenced him to a total of fifteen months in the county jail and fined him $2,450.00.
The event underlying Hooks’s conviction took place on April 14, 2000. According to Hooks, he was driving three miles from his home down a “real rough” country road when he slowed his car and drove on the wrong side of the road to avoid potholes. At that point, another vehicle, driven by Andy Sanders, struck him. Although Sanders’s account differs as to who caused the accident, he admits that he lost control of his truck after the impact and landed in a ditch. After Sanders regained control and drove on, Hooks followed him until Sanders’s car died at the end of Delta Drive. Hooks then exited his car, purportedly to survey the damage caused by the collision.
Under appellee’s account, Sanders’s stepfather, Walter Martin, then appeared in another vehicle and blocked his exit. The men exchanged hostile words, and Hooks ultimately retrieved a shotgun from the right-front passenger seat of his car that he had used earlier in the day for turkey hunting. Hooks testified that he got the gun to scare Martin and Sanders and to persuade them to move their truck so. that he could leave the scene. When Martin refused to move the truck and allegedly told Hooks that he “was not going anywhere,” Hooks fired a shot at the front tire. Both Martin and Sanders were in the vehicle when Hooks fired the gun. Sanders then moved the truck. Hooks drove away but was later apprehended by police. Hooks acknowledged that Martin and Sanders were unarmed and that he “took matters into [his] own hands.”
On the other hand, Sanders and Martin testified that Hooks was carrying a shotgun when he staggered to the driver’s window of their car and held the gun to Martin’s face and threatened to kill him. They also reported that Hooks appeared to be intoxicated, was verbally threatening, and struck Martin across the face. Hooks then backed away from the vehicle, aimed the gun towards the tire, and shot.
In light of the conflicting testimony, the State proffered AMCI 2d 705, a jury instruction concerning the use of deadly physical force in defense of a person. Appellee submitted AMCI 2d 704, addressing the use of physical force in self-defense. The State objected to Hooks’s instruction on the basis that appellee employed deadly physical force when he discharged a gun at an occupied car. Further, the State reasoned that no rational basis existed for the trial court to instruct the jury that Hooks was justified in employing nondeadly force.
After reviewing both instructions “under the circumstances,” the trial court disagreed and concluded that Hooks’s instruction was the “better instruction.” The court also noted that AMCI 2d 704 “more closely applies to the facts.” Consequently, the trial court informed the jury that Hooks asserted a claim of self defense to the aggravated-assault and terroristic-act charges. Specifically, the court informed the jury that Hooks would not have been justified in using physical force upon another if he provoked the use of unlawful physical force or he was the initial aggressor.
Jurisdiction
On appeal, the State argues that the trial court’s decision satisfies the jurisdictional requirements under Ark. R. App. P.— Crim. 3(c) (2001), because the asserted error prejudiced the State, and the correct and uniform administration of the criminal law requires our review. Essentially, the State maintains that the trial court erred as a matter of law by finding that an individual firing a gun at an occupied vehicle employed anything less than deadly physical force. Despite the State’s characterization that this case presents an issue of law, the record reveals that the trial court’s decision turned upon the specific facts of this case. We have long held that where the resolution of the issue on appeal turns on the facts unique to the case, the appeal is not one requiring interpretation of our criminal rules with widespread ramification, and the matter is not appealable by the State. See State v. Dawson, 343 Ark. 683, 688-89, 38 S.W.3d 319, 322 (2001) (citing State v. McCormack, 343 Ark. 285, 34 S.W.3d 735 (2000); State v. Guthrie, 341 Ark. 624, 19 S.W.3d 10 (2000); and State v. Howard, 341 Ark. 640, 19 S.W.3d 4 (2000)). Accordingly, we dismiss the State’s appeal. | [
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Per Curiam.
The State of Arkansas has filed a motion to dissolve a stay of execution entered in the case of appellant, Don William Davis.
On March 9, 1992, appellant was convicted of capital murder in Benton County Circuit Court and was sentenced to death by lethal injection. From that conviction, he filed a direct appeal with this Court. On October 4, 1993, we affirmed his capital murder conviction and death sentence. Davis v. State (“Davis 2”), 314 Ark. 257, 863 S.W.2d 259 (1993). Appellant petitioned the United States Supreme Court for a writ of certiorari, but the writ was denied. Davis v. Arkansas, 511 U.S. 1026 (1994).
On June 6, 1994, appellant filed a timely petition for postconviction relief, pursuant to Ark. R. Crim. P. 37. On June 10, 1994, he filed a supplemental petition. On June 29, 1999, after a hearing on the matter, the trial court denied postconviction relief. Appellant sought a stay, and we granted the stay on November 11, 1999.
Appellant filed an appeal with this Court from the June 29, 1999, order. On May 31, 2001, we affirmed the trial court’s decision in Davis v. State (“Davis II’), 345 Ark. 161, 44 S.W.3d 726 (2001). We issued a mandate in connection with this opinion on June 19, 2001.
The State now files a motion to dissolve the stay of execution, which was imposed on November 11, 1999. Specifically, the State is concerned whether the stay remains in effect even though the appeal on which it was premised has been concluded. See Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981) (affirmatively dissolving stay of execution once proceeding is concluded).
Appellant has exhausted all of his remedies recognized by our Court, and the stay was dissolved upon the final disposition of this appeal in Davis II, supra. See Ark. R. App. P. — Crim. 10. Therefore, we grant the State’s motion. The stay is dissolved.
Motion granted. | [
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Tom Glaze, Justice.
Gary Martin was convicted of first-degree murder and sentenced to life in prison for the 1998 killing of Kimberly Burris. Martin raises two points on appeal; neither has merit, and we affirm his conviction.
For his first point on appeal, Martin argues that the trial court erred in denying his motion for directed verdict. Particularly, Martin contends that there was insufficient evidence to corroborate the statement of an accomplice, Yolonda Day, who gave several statements to authorities in Arkansas and in St. Louis, Missouri, that she had witnessed the murder. We treat motions for directed verdict as challenges to the sufficiency of the evidence. McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999) (citing Marta v. State, 336 Ark. 67, 983 S.W.2d 924 (1999)). When reviewing the sufficiency of the evidence, we determine whether there is substantial evidence to support the verdict, viewing the evidence in a light most favorable to the State. Id.
Kimberly Burris disappeared from North Little Rock around July 20, 1998. Her remains were discovered in a freezer in an abandoned house in Lonoke County on November 15, 1998. Gary Martin was arrested and charged with Burris’s murder on March 18, 1999, after police received information linking him with Burris’s disappearance. The bases of the charges against Martin included statements given by a woman named Yolonda Day. Lonoke County authorities learned that Day was in the St. Louis, Missouri area, and contacted the police in St. Louis, who, in turn, picked up Day on April 26, 1999, and questioned her about Burris’s murder. That same day, St. Louis Detective Robert Jordan videotaped his interview with Day. Day stated that she did not remember the exact day of the events, but said that she and Gary Martin and two other men — Elton Simms and Lester Perry — were driving in North Little Rock when they picked up Burris on Main Street. Martin said that they needed to take a ride, so they drove to an abandoned house in Lonoke. While in the living room of the house, the group was smoking crack cocaine, when Martin told Burris that he needed to talk to her; the two left the room and went back to a bedroom. About fifteen or twenty minutes later, Day said she heard a scream. She, along with Simms and Perry, went to see what had happened, and they discovered Burris lying in a pool of blood and Martin standing over her with a knife in his hand. Day related that Martin then took some duct tape and rope, put the tape on Burris’s mouth, and “hog-tied her and . . . stuffed her in the freezer.”
In her interview, Day described the route by which the group drove to the Lonoke house, and provided other details of the killing, such as the type and size of the freezer into which Burris’s body had been placed. Day also stated that the men had been saying that they were “going to rough her up or something,” although she did not know that they meant to kill her. When asked why Martin would want to “get” Burris, Day said that it was because Burris had given Martin AIDS.
On April 28, 1999, Arkansas State Police Investigator Scott Pillow drove to St. Louis to pick up Day and bring her back to Arkansas. After booking her into the Lonoke County jail, Pillow informed Day of her Miranda rights and began an interview with her, which he audiotaped. During the interview, Day repeated that she joined Martin, Simms, and Perry, and then the group picked up Burris on Main Street in North Little Rock. Day said that Burris was wearing a striped shirt and a pair of shorts at the time. (This fact was later confirmed by Dr. Charles Kokes, the medical examiner, who testified that Burris’s remains were clothed in a striped shirt and shorts.) Day essentially repeated to Pillow the same information she had given to Detective Jordan in St. Louis, including the directions to the house, where the murder took place, Martin’s taking Burris aside to talk to her, and the fact that Martin hogtied Burris with duct tape after placing tape over her mouth and then placed her body in a freezer.
On appeal, Martin argues that the State failed to corroborate Day’s statements, asserting that once her statement is excluded, there was insufficient evidence to connect him with the murder. His argument is meritless. Ark. Code Ann. § 16-89-111(e)(1) (1987) provides that a person cannot be convicted of a felony based upon the testimony of an accomplice, unless that testimony is “corroborated by other evidence tending to connect the defendant with the commission of the offense.” Corroboration is not sufficient if it merely establishes that the offense was committed and the circumstances thereof. Id. It must be evidence of a substantive nature since it must be directed toward proving the connection of the accused with the crime and not directed toward corroborating the accomplice’s testimony. Meeks v. State, 317 Ark. 411, 878 S.W.2d 403 (1994). The test for determining the sufficiency of the corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. McGehee, 338 Ark. at 159; Marta, 336 Ark. at 73.
Circumstantial evidence may be used to support accomplice testimony, but it, too, must be substantial. Marta, 336 Ark. at 73 (citing Peeler v. State, 326 Ark. 423, 932 S.W.2d 312 (1996)). Corroborating evidence need not, however, be so substantial in and of itself to sustain a conviction. Flowers v. State, 342 Ark. 45, 25 S.W.3d 422 (2000). Where circumstantial evidence is used to support accomplice testimony, all facts of evidence can be considered to constitute a chain sufficient to present a question for resolution by the jury as to the adequacy of the corroboration, and the court will not look to see whether every other reasonable hypothesis but that of guilt has been excluded. Johnson v. State, 303 Ark. 12, 792 S.W.2d 863 (1990).
After excluding Day’s statements, the evidence introduced at trial showed the following. Burris and Martin had been dating for several months before she disappeared. Burris was a prostitute who traded sex for drugs, and sometime in 1996, she contracted HIV. On July 3, 1998, a “sincerely upset” and “very emotional” Martin informed his parole officer, William Lambert, that he had found out that his girlfriend had given him the AIDS virus.
Late in July of 1998, Gloria Green, who lived in North Litde Rock, saw Burris and Martin walking past her house. While she saw the two of them walk past her house nearly every day, on this day, Martin “snatched on” Burris and pulled her into an alley. When the two came out of the alley, Martin forced the screaming Burris into an older model car and drove down Eighteenth Street in North Little Rock. That was the last time Green saw Burris.
Also in late July 1998, Harold Tunious, the manager of a convenience store at Eighteenth and Main, in North Little Rock, saw Burris in his store the day before she was reported missing. The next day, Tunious said that Martin came into the store and asked if anyone had seen Burris; Martin also made a statement to the effect that he felt something bad had happened to her, and that she was missing. Tunious thought it strange at the time for Martin to think anything bad had happened, because it was not uncommon for Burris not to show up for a while. A few months later, Martin came back to Tunious’s store and removed a missing-person flier he had put up, saying that Burris had been found. Tunious also said that Martin had told him a story about seeing Burris forced into a vehicle, and that he thought she might be dead. Clara Govig, a friend of Burris’s, testified that before Burris disappeared, Martin wore his hair in long braids, but after her disappearance, he cut his hair short and moved out of his residence. Martin’s brother, Miles Hunter, also testified that Martin told him Burris was missing on the day after she disappeared, and Hunter further confirmed that two days after Burris’s disappearance, Martin moved out of the house where he had lived with Burris.
Lalla Lindsey, Burris’s grandmother, testified that Martin called her on July 21, 1998, the day after Burris disappeared, saying that Burris was missing and that he thought she might be dead. Martin told Lindsey that Burris had gone out about one o’clock in the morning and “gotten in a car,” but that he had not seen her since. Lindsey stated that Martin called her “quite a bit,” and that he told Lindsey several stories about where Burris might be. On one occasion he told Lindsey he had seen Burris walking with a Mexican man in Levy; another time, he stated that while he was looking for Burris in Levy, he walked past an abandoned house that had a bad smell coming from it. Later, he suggested Burris might be in Lonoke, visiting her mother.
Dr. Charles Kokes, the associate medical examiner, testified that Burris died of suffocation due to an external obstruction of the airway. She had been “hog-tied,” with her hands and feet bound behind her back by duct tape and a telephone wire. Kokes described that a gag of duct tape was wrapped around the front of Burris’s face, covering her eyes, nose, and mouth, and extending down over the top of her neck, and that her body had then been put into a chest-type freezer. Dr. Kokes said that Burris’s right elbow had been broken, and he opined that she had suffocated because of the gag over her face; he stated, however, that due to the state of decomposition, he could not rule out the possibility that some other form of trauma had contributed to her death. A chair that was also recovered from the crime scene was found to have hairs on it; later examination by the Arkansas State Crime Lab showed that those hairs were microscopically similar to Yolonda Day’s hair.
The foregoing evidence clearly established Burris’s murder and tended to connect Martin to its commission. He gave inconsistent stories about Burris’s disappearance, and made conflicting suggestions about her whereabouts. Moreover, he both moved and changed his appearance within a few days of her disappearance. The jury is not required to lay aside its common sense in evaluating the ordinary affairs of life, and it may infer a defendant’s guilt from improbable explanations of incriminating conduct. Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001); Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001). Further, this court has held that false and improbable statements may be considered as evidence of guilt. Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000). Gloria Green’s testimony linked Martin with Burris’s disappearance, and the jury could also have considered Martin’s inconsistent and conflicting statements and behavior as evidence of guilt. Viewing the evidence in the light most favorable to the State, as we are required to do, see Branscum, supra, we conclude that the evidence was sufficient to corroborate Day’s statement and to support the jury’s finding of guilt.
For his second point, Martin argues that the trial court erred in admitting the audiotaped and videotaped statements Yolonda Day gave to police. The court admitted the statements under the residual hearsay exception, Ark. R. Evid. 803(24). Martin contends this decision was error because the statements did not possess the requisite circumstantial guarantees of trustworthiness required by the rule. Martin also asserts that the trial court erred because the use of this evidence violated his due process and confrontation clause rights.
Prior to trial, the State moved to introduce Day’s two statements under Ark. R. Evid. 803(24). That rule provides that certain statements are not excluded by the hearsay rule as follows:
(24) Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (i) the statement is offered as evidence of a material fact; (ii) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (iii) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.
At a pretrial hearing on the admissibility of Day’s statements, the trial court noted that it had seen the videotape, and found that the statement had the requisite circumstantial guarantees of trustworthiness. The court also pointed out that Martin’s confrontation clause arguments were obviated because Day was available for cross-examination. The court then questioned Day about her statements; Day asserted that her intent was to claim that she had lied when she gave those statements. Ultimately, the court ruled that the statements would be admissible under Rule 803(24). At trial, defense counsel extensively cross-examined Day about her statements; Day continued to maintain that she lied to the police, although she conceded that she was never threatened by officers, and simply made up the statements because she was tired and did not think the police would believe her.
The residual hearsay exception was intended to be used very rarely, and only in exceptional circumstances. Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992). If a statement is to be admitted under the exception, it must have circumstantial guarantees of trustworthiness equivalent to those supporting the common-law exceptions. Id.; Blaylock v. Strecker, 291 Ark. 340, 724 S.W.2d 470 (1987). In determining that trustworthiness, the trial court must, under the language of the rule, determine that (1) the statement is offered as evidence of a material fact, (2) the statement is more probative on the point for which it is offered than any other evidence the proponent can procure through reasonable efforts, and (3) the general purposes of these rules and the interests of justice will best be served by admission of the statements into evidence. Blaylock, 291 Ark. at 350.
A trial court has substantial latitude under Rule 803(24) to admit evidence which it feels meets the spirit of the rule. Hess v. Treece, 286 Ark. 434, 693 S.W.2d 792 (1985). Further, this court has repeatedly recognized that matters pertaining to the admissibility of evidence are left to the sound discretion of the trial court. See, e.g., Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000). We will not reverse a trial court’s ruling on a hearsay question unless the appellant can demonstrate an abuse of discretion. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000); Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997)).
Here, after reviewing the videotaped statement, the trial court found that Day’s statements had circumstantial guarantees of trustworthiness, and further found the factors in Rule 803(24) to be in place. First, the statements were offered as evidence of the material fact that Martin killed Burris, as well as the manner in which he committed the murder. Second, the trial court found that the statements were more probative on the point for which they were offered than any other evidence the proponent could procure through reasonable efforts. While the State was able to offer the testimony of numerous witnesses who described seeing Martin with Burris, and spoke of Martin’s unusual behavior following her disappearance, Day was the only witness who set out the details and the actual circumstances of the murder. These details — such as the detailed directions to the abandoned house, the fact that Burris’s face and mouth had been duct-taped, and the fact that her arms and legs were hogtied — were highly indicative of the truthfulness of Day’s statements, and thus rendered the statement more probative of the fact that Martin killed Burris than any other evidence which the State was able to introduce. Finally, the trial court found that the purpose of the rules of evidence and the interests of justice would be served by the introduction of the statements.
Rule 102 of the Arkansas Rules of Evidence provides that the purpose of the rules is to “secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence, to the end that the truth may be ascertained and proceedings justly determined.” By permitting the State to introduce this testimony, the trial court found that the statement was necessary to the administration of justice, in that Day was an eyewitness to the murder. Day had also asserted to the court that she would continue to maintain that her earlier statements were lies, and the court’s ruling was thus an appropriate means to ascertain the truth. Further, the court conducted an extensive hearing on the admissibility of this evidence, and noted that Martin had the opportunity to cross-examine Day during the hearing, and would have another chance to do so during the trial. Thus, the trial court’s ruling on this issue cannot be said to have been an abuse of discretion.
Martin also argues that his confrontation clause rights were violated by the introduction of these statements, citing White v. Illinois, 502 U.S. 346 (1992), and Lilly v. Virginia, 527 U.S. 116 (1999), in support of this argument. The Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, mandates that a declarant’s out-of-court statement, when repeated by someone other than the declarant and offered to prove the truth of the matter asserted, may be admitted into evidence only if it bears “adequate indicia of reliability.” Vann v. State, 309 Ark. 303, 831 S.W.2d 126 (1992). To fall within the admissible category, the evidence must show that the declarant’s truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility, although courts have recognized that there is no “mechanical test for determining ‘particularized guarantees of trustworthiness’ under the Clause.” Vann, 309 Ark. at 307 (quoting Idaho v. Wright, 497 U.S. 805 (1990)).
Here, the statements given by Day were consistent, uncoerced, and contained details that would not have been known by a person who was not present at the scene. These factors, considered by the trial court as indicative of the reliability of Day’s statement, rendered the statements reliable. Further, Martin had ample opportunity to cross-examine Day about her statements, and he did so both at the pretrial hearings and at the trial itself. Accordingly, we hold that the trial court’s decision to admit Day’s statements under the residual hearsay exception was not error.
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.
Day’s presence at the house where the murder was committed was corroborated by criminalist Chantelle Bequette’s testimony that a hair matching Day’s was recovered from a chair seized from the crime scene.
While Lilly does speak strongly of the inherent unreliability of statements against penal interest, made by a declarant against a defendant, that holding was premised on a situation in which the defendant was unable to cross-examine the declarant. That is not the situation here. | [
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Per Curiam.
Appellant John Byrer, by and through his attorney, Orvin Foster, has filed a second motion for rule on clerk. Appellant previously filed a motion for rule on clerk after the clerk refused to docket his appeal and would not accept the record due to a failure to comply with Arkansas Rule of Appellate Procedure-—Civil 5(b)(1). On February 21, 2008, we remanded the case to the circuit court for compliance with Rule 5(b)(1). See Byrer v. Colvard, 372 Ark. 460, 277 S.W.3d 209 (2008) (per curiam) (Byrer I).
We have 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 id. Accordingly, before a circuit 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 circuit court must make findings to support an extension. See Spurlock v. Riddell, 373 Ark. 38, 280 S.W.3d 18 (2008) (per curiam); see also Ark. R. App. P.-Civ. 5(b)(1). 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 Byrer I, 372 Ark. 460, 277 S.W.3d 209. Furthermore, we have 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, upon remand, the circuit court reaffirmed its original order of extension and found that its March 24, 2008 order should relate back to its original order granting an extension of time to file the record until January 28, 2008. However, a review of this second order reflects that the requirements of Rule 5 were not met as the request for extension was not properly brought by Appellant. Specifically, the circuit court found that Appellee Joan Colvard did not receive notice of Appellant’s request for an extension of time, but that she had the opportunity to be heard at a March 12, 2008 hearing. Because Appellee did not receive notice of Appellant’s original motion, Appellant was not in compliance with Rule 5(b) at the time of the initial motion. Moreover, it is clear from the record that the circuit court erroneously gave Appellant an opportunity to correct the deficiency when it held the March 12 hearing. Accordingly, the circuit court’s order of extension was void, and 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. | [
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Paul E. Danielson, Justice.
This case began as an illegal-exaction suit filed by appellants John Reeve et al. and ended
in Rule 11 sanctions granted against counsel for appellants, Cindy M. Baker. Appellants argue on appeal that the circuit court’s order issued on May 17, 2007, was not a final order, or, alternatively, that it should have been set aside. Furthermore, Baker contends that the circuit court abused its discretion in finding she violated Rule 11 and by awarding attorney’s fees. We affirm the circuit court.
Appellants filed their illegal-exaction claim on October 31, 2006. Appellees, Carroll County et al., responded by filing a joint motion to dismiss on November 17, 2006. The circuit court held a hearing on March 6, 2007, to address appellees’ motion to dismiss and a motion to dismiss that had been filed by the prosecuting attorney, which is not at issue in this appeal.
At the hearing, the circuit court recognized the newly elected Quorum Court members and newly elected county officers and substituted those parties as proper defendants where necessary. As the hearing proceeded, the parties informed the court that there was an agreement reached that should lead to a settlement. The circuit court provided counsel with some additional time to discuss their agreement and specific stipulations, and the parties proceeded to read the terms of their agreement into the record. The parties and the circuit court all agreed that the compromise would settle all the issues that existed between the parties.
The circuit court issued its order on May 17, 2007, which had been prepared by appellees’ counsel, W.H. Taylor. The language in the order addressing the findings of the circuit court tracked the transcript of the agreement as it was read into the record at the March 6 hearing. However, on June 6, 2007, appellants, by and through their counsel, Cindy Baker, filed a motion to set aside the order, alleging that the court’s order was erroneous and contained findings not approved or agreed to. In response, appellee Shirley Doss, by and through her counsel, W.H. Taylor, filed a motion for Rule 11 sanctions, claiming that the motion to set aside was not well-grounded in fact, was not warranted by existing law, and presented no good-faith argument for the extension, modification, or reversal of the existing law. Further, the Rule 11 motion alleged the motion to set aside the order had been interposed for an improper purpose and would result in a needless increase in the cost of litigation.
The circuit court held a hearing on the motion for Rule 11 sanctions on August 28, 2007. Attorney Baker requested that the court rule on the motion to set aside the order. The circuit judge responded that he believed the order had been deemed denied because the motion was never ruled on. When Baker persisted, the court informed her that the motion was denied and encouraged her to focus on the motion for Rule 11 sanctions. The main defense Baker presented on her own behalf was that the agreement was not correctly reflected in the court’s May 17 order. However, she attempted to use a document not in evidence to support her argument. The circuit court repeatedly reminded her that it could only consider the agreement as it was read into the record.
After considering her arguments, the circuit court found that the motion to set aside the order was indeed frivolous and that sanctions should be imposed. On September 19, 2007, the circuit court issued the order granting the motion for Rule 11 sanctions. Appellants filed a notice of appeal on September 25, 2007, from “the Orders and findings of the court from the proceedings held August 28, 2007.” The same day, Baker, as the Rule 11 respondent, filed her notice of appeal from the circuit court’s finding that she violated Rule 11. A notice of appeal was never filed from the circuit court’s May 17, 2007 order. We now turn to the instant appeal.
The crux of appellants’ argument is that their motion to set aside the court’s May 17 order should have been granted and that the circuit court erred by treating it as a postjudgment motion because the order was not final. As previously noted, the circuit court issued the order on May 17, 2007, after conducting a hearing. The order made several findings on various motions filed by the parties, a motion to dismiss filed by Robert T. Rogers, the pleadings, the evidence adduced in open court, and the stipulations made in open court. Included in that order was the settle ment agreement between the parties, as it had been translated to the court on the record with all parties present. While appellants contend the order was not final, they do not present a valid argument for this court to make such a holding. We have repeatedly held that we will not make a party’s argument for them or raise an issue sua sponte, unless it involves the trial court’s jurisdiction. See Jones v. Flowers, 373 Ark. 213, 283 S.W.3d 551 (2008). This court will not consider an argument that is not properly developed. See id.
Furthermore, we are precluded from reviewing the merits of the May 17 order because the appellants did not file a timely notice of appeal. Appellants filed their notice of appeal on September 25, 2007, which was 131 days after the order was entered. 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. - Civil 4(a) (2007).
While the appellants did file a motion to set aside the order on June 6, 2007, that motion did not extend the time for filing the notice of appeal. See, e.g., Shivey v. Shivey, 337 Ark. 262, 987 S.W.2d 719 (1999). The only motions that will extend the time for filing a notice of appeal are a motion for judgment notwithstanding the verdict under Rule 50(b) of the Arkansas Rules of Civil Procedure, a motion to amend the court’s findings of fact or to make additional findings under Rule 52(b), a motion for new trial under Rule 59(a), or any other motion to vacate, alter, or amend the judgment made no later than 10 days after the entry of judgment. See Ark. R. App. P. - Civil 4(b) (emphasis added).
Appellants suggest on appeal that their motion to set aside was pursuant to Rule 60. A Rule 60 motion is not listed in section (b) of the rule. Even were we to treat the motion as some other motion to vacate, alter, or amend the judgment, it was not filed within ten days after the entry of judgment and, thus, would not extend the time for filing the notice of appeal. See id. Because we decide this matter based on the untimeliness of the notice of appeal, we need not address the other deficiencies alleged regarding the May 17, 2007 order or the motion to set it aside. Therefore, the only issues this court may now address are those arguments on appeal resulting from the circuit court’s order granting the motion for Rule 11 sanctions.
After a Rule 11 hearing held on August 28, 2007, the circuit court found that:
the separate defendant’s motion for Rule 11 sanctions should be granted, as the motion to set aside order, which was filed by plaintiffs’ counsel, Cindy M. Baker, is not well-grounded in fact, and is not warranted by existing law, and there is no good faith argument for the extension, modification or reversal of the existing law. This Court specifically finds that the motion filed was frivolous and has resulted in a needless increase in the cost of this litigation.
On appeal, Baker argues that the circuit court abused its discretion in finding that she violated Rule 11 because she had operated in good faith and the record does not support the circuit court’s finding that the motion to set aside the order was not filed in good faith. Furthermore, she argues that the circuit court abused its discretion in awarding attorney’s fees to Shirley Doss.
Rule 11 of the Arkansas Rules of Civil Procedure instructs in pertinent part that:
(a) Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name .... The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. ... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the fifing of the pleading, motion, or other paper, including a reasonable attorney’s fee.
Ark. R. Civ. P. 11(b) (2007).
We review a circuit court’s determination of whether a violation of Rule 11 occurred and what the appropriate sanction should be under an abuse-of-discretion standard. See Sanford v. Harris, 367 Ark. 589, 242 S.W.3d 277 (2006); Pomtree v. State Farm Mut. Auto. Ins. Co., 353 Ark. 657, 121 S.W.3d 147 (2003). In our review, we give the circuit court’s determination “substantial deference.” See id.
The order appellants moved to set aside was issued subsequent to a hearing held on March 6, 2007. As previously noted, at the hearing, the parties read into the record the terms of the settlement agreement, and the circuit court specifically asked all the parties if the terms were agreed to as read into the record and if there was anything further to discuss before the court recessed. Baker agreed to the terms and did not present any objections. The order issued by the circuit court on May 17, 2007, tracks the language used by the parties when the terms of the settlement agreement were read into the record, yet Baker filed a motion to set aside the order on behalf of the appellants, claiming it was erroneous and contained findings not approved or agreed to.
At the Rule 11 hearing, Baker attempted to use a “marked up” order that she claimed was used in the process of reaching the settlement agreement. However, that document was not a part of the record, and Baker clearly did not object to the agreement as it was read into the record at the March 6 hearing. We cannot say the circuit court abused its discretion in finding that the motion to set aside the order filed on behalf of the appellants was frivolous and violated Rule 11.
Baker further argues that Doss should not have been awarded attorney’s fees as a result of the Rule 11 violation because, at the time of the award, Doss had been dismissed. However, that argument is inaccurate and meritless. Doss was a defendant directly affected by the circuit court’s May 17 order. While the order stated that, by stipulation of the parties, all defendants other than Carroll County would be nonsuited by the plaintiffs, that order was the subject of the motion to set aside. Additionally, appellants’ motion to set aside the order specifically listed Doss as a defendant that the motion was directed against. Therefore, Doss had to retain counsel to defend the order and she, by and through her counsel, filed the Rule 11 motion. Section (b) of Rule 11 provides that the court may award the reasonable expenses and attorney’s fees incurred to the party prevailing on the motion. See Ark. R. Civ. P. 11(b). Again, we cannot say the circuit court abused its discretion here by doing so.
On a final note, we hold that appellants’ motion to strike appellee’s response brief and their request for an extension of time to submit a reply brief, are both moot.
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DONALD L. CORBIN, Justice.
Appellant Robert Lee Spark-man was convicted of the rape of a four-year-old girl and received a sentence of 216 months’ imprisonment in the Arkansas Department of Correction. This conviction was affirmed by the court of appeals in Sparkman v. State, 91 Ark. App. 138, 208 S.W.3d 822 (2005) (Sparkman I). Subsequendy, Appellant timely filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1, which the Benton County Circuit Court denied. Appellant has lodged an appeal here from that order. On appeal, he argues that the circuit court erred when it denied his Rule 37 petition without an evidentiary hearing because the petition was not conclusory and he did show prejudice as required by Strickland v. Washington, 466 U.S. 668 (1984). We agree and reverse and remand for a new trial.
On July 7, 2005, Appellant filed a verified pro se petition for postconviction relief in which he argued that trial counsel was ineffective in failing to move to suppress his custodial statement, given to Detective Brad Abercrombie, because it was taken in violation of his Sixth Amendment right to counsel. Appellant also requested an evidentiary hearing on the matter. Shortly thereafter, Appellant filed a motion for appointment of counsel pursuant to Ark. R. Crim. P. 37.3(b). In a September 23, 2005 order, the circuit court appointed new counsel to represent Appellant in his postconviction proceedings.
In response to the Rule 37 petition, the State argued that Appellant had failed to show cause and prejudice under Strickland. Then, on March 15, 2006, the State filed a motion to dismiss the petition because Appellant failed to plead facts showing actual prejudice, such that his claim of ineffective assistance of counsel was “conclusory” in nature and, as such, could not be a basis for postconviction relief. The circuit court held two hearings on the matter. Following these hearings, and upon review of the record and the pleadings, the court found that the Rule 37 petition was conclusory in nature and dismissed the petition. Additionally, the circuit court found that Appellant had not shown actual prejudice and that there was no reasonable probability that the outcome of his trial would have been different had his statement been suppressed. In conclusion, the court further found that “this one error by trial counsel did not result in the ‘breakdown in the adversarial process,’ nor did this one error deny [Appellant] a fair trial.” This appeal followed.
In appeals of postconviction proceedings, we will not reverse a circuit court’s decision granting or denying postconviction relief unless it is clearly erroneous. State v. Barrett, 371 Ark. 91, 263 S.W.3d 542 (2007); Walker v. State, 367 Ark. 523, 241 S.W.3d 734 (2006) (per curiam); Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (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. Barrett, 371 Ark. at 95, 263 S.W.3d at 545.
On appeal, Appellant claims that the circuit court erred when it denied his Rule 37 petition without an evidentiary hearing based upon the court’s findings that (1) the petition was conclusory in nature, and (2) he did not show prejudice as required by Strickland. We have explained that in determining whether a petitioner has established grounds entitling him to Rule 37 relief, the circuit court relies upon the Rule 37 petition itself. Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003). Moreover, Ark. R. Crim. P. 37.3(a) provides its own mechanism for dealing with conclusory petitions:
(a) If the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court’s findings.
We have interpreted Rule 37.3(a) to require an evidentiary hearing in a postconviction proceeding unless the files and the records of the case conclusively show that the prisoner is entitled to no relief. See Walker, 367 Ark. 523, 241 S.W.3d 734; Sanders, 352 Ark. 16, 98 S.W.3d 35. It is undisputed that a circuit court has discretion pursuant to Rule 37.3(a) to decide whether the files or records are sufficient to sustain the court’s findings without a hearing. Id. However, Ark. R. Crim. P. 37.3(c) provides that when a Rule 37 petition is filed in the circuit court and the court does not dispose of the petition under Rule 37.3(a), the court shall promptly grant a hearing on the petition.
In the present case, the circuit court found that Appellant’s Rule 37 petition was conclusory in nature and subsequently dismissed the petition. This was clear error as Appellant’s Rule 37 petition provided specific facts to “establish actual prejudice due to his attorney’s conduct” at trial and not conclusory allegations. Sanford v. State, 342 Ark. 22, 27, 25 S.W.3d 414, 417 (2000). Although we hold that the circuit court clearly erred in finding that Appellant failed to state factually specific, nonconclusory allegations in his Rule 37 petition, we are not required to remand the case back to the circuit court for an evidentiary hearing as the court fully complied with Rule 37.3(a). Specifically, after finding that Appellant’s petition was conclusory, the circuit court also denied the petition and provided written findings as to the basis for its conclusion that Appellant had not shown actual prejudice and that there was a reasonable probability that the outcome of his trial would not have been different had his statement been suppressed. Therefore, we can address the merits of Appellant’s ineffective assistance of counsel claim.
In an appeal from a circuit court’s denial of a Rule 37 petition, the question presented to us is whether, based on the totality of the evidence, the circuit court clearly erred in holding that counsel’s performance was not ineffective under the Strickland standard. See Walker, 367 Ark. 523, 241 S.W.3d 734; Howard, 367 Ark. 18, 238 S.W.3d 24. Under the standard set forth in Strickland, to determine ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. Barrett, 371 Ark. 91, 263 S.W.3d 542; Howard, 367 Ark. 18, 238 S.W.3d 24. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Barrett, 371 Ark. 91, 263 S.W.3d 542. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id.
Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Id. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.
Furthermore, unless a petitioner makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreli able. Id. Actual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. Barrett, 371 Ark. 91, 263 S.W.3d 542. Additionally, the burden is on the petitioner to provide facts to support his claim of prejudice. Id. The defendant claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Id. Finally, conclusory statements cannot be the basis of postconviction relief. Id.
Appellant has met the first requirement of the Strickland test by showing that counsel’s performance was deficient by failing to move to suppress his custodial statement as a violation of the Sixth Amendment right to counsel. Specifically, it is clear that Appellant’s custodial statement would have been suppressed as a violation of the Sixth Amendment right to counsel under Bradford v. State, 325 Ark. 278, 927 S.W.2d 329 (1996), had trial counsel so moved. In Bradford, we held as follows:
We read Michigan v. Jackson[, 475 U.S. 625 (1986),] to stand for the proposition that once the Sixth Amendment right to counsel attaches and once the defendant requests counsel, an ordinary waiver of Miranda rights will not suffice to validate a subsequent confession. The same principle should apply to appointed counsel .... Once counsel was appointed by the court, knowledge of the appointment was imputed to police officers, and they were under an affirmative obligation to respect it.
Id. at 288, 927 S.W.2d at 334.
Here, it is undisputed that prior to his interrogation, Appellant had been appointed counsel, and said counsel was not notified of the interrogation nor present for it. It was during this interrogation that Appellant admitted to certain sexual acts with the victim. During trial, counsel moved to suppress the statement based upon a false promise used to entice the confession, but this motion was denied by the circuit court. Upon review, and as the circuit court found, had trial counsel moved to suppress the custodial statement for violation of Appellant’s Sixth Amendment right to counsel it would have been granted. Accordingly, there is no question Appellant satisfied the first prong of Strickland as he has shown that trial counsel’s performance was deficient and that it was an error so serious that counsel was not functioning as that guaranteed by the Sixth Amendment.
We must now review whether, based upon the totality of the evidence, Appellant has shown that he was so prejudiced by counsel’s deficient performance that he was deprived of a fair trial. See Barrett, 371 Ark. 91, 263 S.W.3d 542. Here, based upon the totality of the evidence, we hold that the circuit court clearly erred in finding that Appellant had not shown prejudice and that there was not a reasonable probability that the outcome of his trial would have been different absent his custodial statement.
First, and foremost, the United States Supreme Court has held:
A confession is like no other evidence. Indeed,“the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him---- [T]he admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Certainly, confessions have profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so.”
Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (quoting Bruton v. United States, 391 U.S. 123, 139-40 (1968) (White, J., dissenting)); see also Cruz v. New York, 481 U.S. 186 (1987) (White, J., dissenting); United States v. Jones, 16 F.3d 275 (8th Cir. 1994); Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995) (Glaze, J., concurring). This nature of a confession alone shows that the introduction of Appellant’s videotaped statement at trial likely, if not certainly, impacted its outcome.
Second, the other evidence introduced at trial included a videotaped interview of the victim. In Sparkman I, the sole issue on appeal was that the use of this video violated the Confrontation Clause of the Sixth Amendment as Appellant was unable to conduct a cross-examination of the victim during the interview. The court of appeals did not directly address this issue and instead held that the admission of the victim’s videotaped statement was cumulative and any error was harmless. In reaching this decision, the court of appeals relied upon other evidence introduced at trial, including Appellant’s inculpatory statement to Detective Abercrombie. For example, the court of appeals included specific details of Appellant’s “own admission during his interview with Detective Abercrombie that he engaged in inappropriate sexual conduct with T.B.” when it performed its harmless-error analysis. Sparkman I, 91 Ark. App. at 142, 208 S.W.3d at 825.
We cannot ignore the impact Appellant’s statement had on his trial and his direct appeal. Frankly, based on the great weight accorded a confession, the inclusion of Appellant’s statement as State’s evidence at trial, and as used by the court of appeals in affirming his conviction, is sufficient to find that there is a reasonable probability that the decision reached would have been different absent counsel’s failure to move to suppress the statement. Based upon the foregoing, the second prong of Strickland has been satisfied.
As Appellant has satisfied both prongs of the Strickland test, we hold that his conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Accordingly, the circuit court clearly erred when it denied Appellant postconviction relief. We reverse and remand for a new trial. Upon retrial, the evidence against Appellant will not include his custodial statement.
Reversed and remanded.
The State also argued that the circuit court should find as a matter of trial strategy that the defense did not move to suppress Appellant’s statement on the ground that his Sixth Amendment right to counsel was violated. This argument was not the basis for the circuit court’s ruling nor is it an issue on appeal.
Although we are prevented from considering the issue at this time, we note that upon retrial the circuit court would be able to consider any suppression motions as to admissibility of the State’s evidence. | [
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ROBERT L. BROWN, Justice.
Appellant Charles Edward Goodwin appeals his judgment of conviction for aggravated robbery and attempted capital-felony murder and his sentence of life imprisonment for the attempted capital murder.
The facts in this case are gleaned from witnesses at trial and Goodwin’s statement to police officers. At approximately 10:15 a.m. on June 7, 2006, Betty Word, the owner of the Fashion Center in Bearden, was working at the store when a longtime customer, Rosetta Milton, came in and paid forty dollars towards her account. While Mrs. Milton was looking at dresses, a thin black man dressed in dark clothes, wrap-around sunglasses, and a Nike headband came into the store and began shopping. Both Mrs. Word and Mrs. Milton identified this man as Goodwin. After Mrs. Milton left the store, Goodwin continued shopping and asked Mrs. Word several questions about her merchandise. Fie then asked Mrs. Word whether she knew who he was, to which she responded that he was Virginia Marshall’s son. They continued to chat for a few minutes. She then turned around and began putting shoes on a shelf.
Goodwin approached Mrs. Word with one hand behind his back and said, “This is a robbery.” Mrs. Word offered to get him as much money as he wanted, but he said that, since she knew who he was, he would have to kill her. He took her into a back room and started strangling her. When she continued to struggle, he tried to suffocate her with plastic bags. Eventually, he struck her three times on the head with an unidentified object. Thinking she had been shot, she fell to the floor, bleeding, and pretended to be dead.
Goodwin left the back room but came back later and kicked Mrs. Word. She remained motionless, and he checked her pockets. He then left the store. Law enforcement officers from the Ouachita County Sheriffs Department and the Arkansas State Police, as well as the Bearden City Marshall, responded to the scene after Mrs. Word was discovered by a friend who worked at a nearby store. Mrs. Word was conscious when the police officers arrived. Although she did not know Goodwin’s real name and expressed some confusion as to his nickname, she identified her attacker as Virginia Marshall’s tall, slender son. The forty dollars paid by Mrs. Milton and all of the quarters from the cash register were missing. Goodwin was arrested by police officers that afternoon. He was wearing dark clothes and had a Nike headband in his pocket. Both Mrs. Word and Mrs. Milton later identified Goodwin in a photo array prepared by police officers.
After his arrest, Goodwin made a videotaped statement to police officers, in which he said that he had gone to a drug dealer on the morning of the robbery and had gotten some crack cocaine. He stated that, after smoking the cocaine, he began to consider how he was going to get money to buy some more. He admitted to going into the Fashion Center and talking to Mrs. Word, eventually telling her that he was going to rob her. He stated that she told him she did not have much money at the store but would take him to the bank. He also admitted taking her into the back room and pushing her hard before taking money from the cash register.
Defense witnesses, however, had a different version of the events of June 7, 2006. Goodwin’s sister and her twelve-year-old son testified that they were with Goodwin at his stepfather’s house between 11:00 a.m. and 12:30 p.m. on the day of the robbery. Goodwin also testified in his own defense to the effect that he was awakened at around 10:30 or 10:45 a.m. on the day of the robbery by his mother, because he had a phone call from his wife. According to Goodwin’s version of events, after talking to his wife for about ten minutes, he left the house and got crack cocaine from local drug dealers. He stated that, after obtaining the drugs, he returned to his stepfather’s house at 11:00 a.m. and smoked crack on the back porch. At around 12:30 or 1:00 p.m., he testified, he left the house for a while. He further testified that, when he returned to the house, his sister told him that people were saying that he had shot Mrs. Word, and he fled before being arrested. Goodwin also testified that the only reason that he made an incriminating statement on the day of the robbery was that police had coerced him and threatened him with violence.
On June 20, 2006, Goodwin was charged with aggravated robbery, attempted capital murder, possession of a firearm by a convicted felon, theft of a firearm, and forgery.
One of the issues that arose before trial in a motion to suppress filed by Goodwin was the voluntariness of his videotaped statement to police. A hearing on Goodwin’s motion to suppress was held on January 22, 2007. At that hearing, Investigator Terry Smith of the Arkansas State Police and Sergeant James Bolton of the Ouachita County Sheriffs Department, the two police officers who interrogated Goodwin, testified about the circumstances surrounding Goodwin’s statement. They testified that Goodwin was read and signed a form advising him of his Miranda rights, that he did not appear to be under the influence of drugs or alcohol, that he was not promised anything in exchange for his statement, and that he was not threatened with force at any time. Investigator Smith, who was primarily responsible for interviewing Goodwin, testified that he lied to Goodwin during the investigation, telling him falsely that the events at the Fashion Center had been captured on videotape. Fie also testified that, before the recorded portion of his interview with Goodwin, he left the interrogation room and called the prosecuting attorney. Upon his return to the interview room, he told Goodwin that he had talked to the prosecutor and told the prosecutor that Goodwin was being honest and remorseful.
Goodwin also testified at the suppression hearing. He denied having committed the crimes with which he was charged and stated that Sergeant Bolton had threatened him with physical violence if he did not confess. He further testified that Sergeant Bolton told him that he would get the electric chair if he did not confess and that Investigator Smith told him what to say in his statement.
Having viewed the video of Goodwin’s statement, the circuit court denied the motion to suppress, saying:
Looking at the video, the defendant, I mean, he just presented — it looked to me as if the defendant was speaking from his heart. It didn’t come across as if someone had coached him. I mean, he was too good. I saw, thought viewed [sic] some pain on his part. I viewed true remorse, I believe, on his part, regret. He would leave an area and then come back to some remorse and regret on the video.
I’m not convinced at all that defendant’s statement was the result of threat, intimidation, coercion. I’m satisfied that it’s voluntary. It was voluntarily and intelligently given.
So I’m not convinced at all by the defendant’s version at this stage of the facts, credibility under the circumstances. I’m satisfied that this is voluntary. There was nothing inappropriate that occurred that led to the defendant giving this statement.
A jury trial was held on January 25, 2007. The jury convicted Goodwin of aggravated robbery and attempted capital murder. Because he had five prior felonies, he was sentenced as a habitual offender. The jury returned a verdict of life imprisonment, and he was sentenced accordingly by the circuit judge.
I. Sufficiency of the Evidence
Goodwin first challenges the circuit court’s denial of his motion for a directed verdict and argues that there was insufficient evidence to show that he intended to commit a theft. Intent to commit theft, he points out, was a necessary element of his conviction for aggravated robbery and the commission of an aggravated robbery, in turn, was a necessary element of his conviction for attempted capital-felony murder. Goodwin notes that there was no physical evidence connecting him to the crime. He concedes that Betty Word testified that he told her it was a robbery but argues that she did not testify that he took any property.
The standard of review for the denial of a motion for a directed verdict is well established:
We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. This court has repeatedly held that 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. We affirm a conviction if substantial evidence exists to support it. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. . . . The credibility of witnesses is an issue for the jury and not the court. The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence.
See, e.g., Strong v. State, 372 Ark. 404, 409, 277 S.W.3d 159, 163-64 (2008) (citations omitted). In determining whether there was substantial evidence to support the verdict, this court looks at all of the evidence presented, including any evidence that is alleged to have been admitted in error. Davis v. State, 318 Ark. 212, 219, 885 S.W.2d 292, 296 (1994).
Goodwin is correct that his convictions for aggravated robbery and for attempted capital-felony murder required the State to introduce substantial evidence of intended theft. See Ark. Code Ann. § 5-12-103 (Repl. 2006) (“A person commits aggravated robbery if he or she commits robbery . . . and the person . . . [i]nflicts or attempts to inflict death or serious physical injury upon another person.”); Ark. Code Ann. § 5-12-102 (Repl. 2006) (“A person commits robbery if, with the purpose of committing a felony or misdemeanor theft . . . the person employs or threatens to immediately employ physical force upon another person.”); Ark. Code Ann. § 5-10-101 (Repl. 2006) (“A person commits capital murder if. . . [t]he person commits or attempts to commit . . . [rjobbery . . . and . .. [i]n the course of an in furtherance of the [robbery] or in immediate flight from the [robbery], the person or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life.”). Under Arkansas law, “[a] person commits theft of property if he or she knowingly . . . [t]akes or exercises unauthorized control over . . . the property of another person, with the purpose of depriving the owner of the property.” Ark. Code Ann. § 5-36-103(a)(l) (Repl. 2006).
The State presented substantial evidence of Goodwin’s intent to commit theft. First, there was Mrs. Word’s testimony, in which she stated that Goodwin told her that he was going to rob her. Then there was the fact that two twenty-dollar bills and some quarters were missing from the Fashion Center after the attack. There was also Goodwin’s own videotaped statement in which he admitted to taking money from the cash register. There can be no doubt that this evidence, when looked at in the light most favorable to the State, was sufficient to allow a jury, without resorting to speculation or conjecture, to come to the conclusion that Goodwin intended a theft. We affirm on this point.
II. Motion to Suppress
Goodwin next argues that the circuit judge erred in denying his motion to suppress the statement he made to police officers. Goodwin cites three arguments in support of his contention that the statement was involuntary. Initially, he points to the fact that one of the officers interrogating him told him that the robbery had been videotaped, which was not true. Then, Goodwin argues that, when the same officer told Goodwin that he had told the prosecuting attorney that Goodwin was being truthful and remorseful, he implied that Goodwin could receive leniency if he made a statement. Goodwin urges that there was no reason for the officer to tell him that he had talked to the prosecuting attorney other than to make him believe that he would get leniency if he made a statement. As a third argument, Goodwin asserts that another police officer made direct threats against him, telling him that he would be beaten and would get the electric chair if he failed to confess to the crimes.
This court has said when analyzing a denial of a motion to suppress:
In reviewing the denial of a motion to suppress a statement, we conduct a de novo review based on the totahty of the circumstances, reviewing findings of historical fact for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court and proper deference to the circuit court’s findings. A statement made while in custody is presumptively involuntary, and the burden is on the State to prove by a preponderance of the evidence that a custodial statement was given voluntarily and was knowingly and intelligently made. In order to determine whether a waiver of Miranda rights is voluntary, this court looks to see if the confession was the product of free and deliberate choice rather than intimidation, coercion, or deception.
Young v. State, 370 Ark. 147, 153, 257 S.W.3d 870, 876-77 (2007) (citations omitted).
The fact that a police officer made an untrue statement during the course of an interrogation does not necessarily make an “otherwise voluntary confession inadmissible.” Conner v. State, 334 Ark. 457, 469, 982 S.W.2d 655, 661 (1998) (quoting Frazier v. Cupp, 394 U.S. 731 (1969)). Rather, “a misrepresentation of fact does not render a statement involuntary so long as the means employed are not calculated to procure an untrue statement and the confession is otherwise freely and voluntarily made with an understanding by the accused of his constitutional rights.” Id. (quotation omitted).
Regarding promises of leniency, “if a police official makes a false promise which misleads a prisoner, and the prisoner gives a confession because of that false promise, then the confession has not been voluntarily, knowingly and intelligently made.” Id. at 469, 982 S.W.2d 655, 661. This court employs a totality-of-the-circumstances test “[i]n determining whether there has been a misleading promise of reward. . . . The totality is subdivided into two main components, first, the statement of the officer and second, the vulnerability of the defendant.” Id. at 469-70, 982 S.W.3d at 661. If the officer has made “unambiguous false promises of leniency,” then any resulting statement is involuntary regardless of the vulnerability of the defendant. Brown v. State, 354 Ark. 30, 33, 117 S.W.3d 598, 600 (2003).
If, on the other hand, “the officer’s statement is ambiguous, making it difficult... to determine if it was truly a false promise of leniency,” the court must examine the defendant’s vulnerability. Id. at 33-34, 117 S.W.3d at 600. This court has enumerated four factors that are among those to be considered in determining a defendant’s vulnerability: “1) the age, education, and intelligence of the accused; 2) how long it took to obtain the statement; 3) the defendant’s experience, if any, with the criminal-justice system; and 4) the delay between the Miranda warnings and the confession.” Id. at 34, 117 S.W.3d at 600. Because “the object of the rule is not to exclude a confession of truth, but to avoid the possibility of a confession of guilt from one who is, in fact, innocent,” a person seeking to have a statement excluded on the basis that a false promise was made must show that the confession induced by the false promise was untrue. Williams v. State, 363 Ark. 395, 405, 214 S.W.3d 829, 834 (2005).
Goodwin’s first ground for excluding his statement is that the police falsely told him that the robbery was caught on videotape. Because this false statement was not “calculated to procure an untrue statement,” it does not render Goodwin’s statement involuntary. Conner, 334 Ark. at 469, 982 S.W.2d at 661. On the contrary, telling Goodwin that the robbery had been videotaped was calculated to procure an accurate statement, since Goodwin believed that police already knew what had happened and would know if he was lying. There was no error committed by the circuit judge in this regard.
Goodwin’s second ground for excluding his statement is that the police officer who interrogated him made a false promise of leniency. It is undisputed that the officer who obtained Goodwin’s statement told him that it would be best for him to be truthful and that he needed to be remorseful. It is also undisputed that the officer told Goodwin that he had talked to the prosecutor and had told the prosecutor that Goodwin was remorseful and was being honest. Goodwin asserts that the only reason for the officer to have told him about the conversation with the prosecutor was to indicate that he would receive leniency if he confessed and was remorseful.
The police officer’s statements to Goodwin were, at most, ambiguous as to whether they constituted a false promise of leniency. Here, the police officer truthfully told Goodwin that he had told the prosecutor that Goodwin was being remorseful and seemed to be telling the truth. Where a police officer does not represent that he or she has the power to promise a reduced sentence but agrees to tell the prosecutor that a suspect has cooperated, it does not, without more, render a subsequent statement involuntary. See Pilcher v. State, 355 Ark. 369, 381, 136 S.W.3d 766, 772 (2003). The officer also told Goodwin that it would be better for him if he told the truth and was remorseful. This was not an unambiguous promise.
Neither was Goodwin particularly susceptible to having his will overborne. See Brown v. State, 354 Ark. at 33-34, 117 S.W.3d at 600. Goodwin was thirty-four years old at the time of the offense, and there is no indication that he has a below-normal intelligence. The statement was taken within a few hours after Goodwin’s arrest and after only a short period of interrogation. Furthermore, Goodwin had a good deal of prior experience with the criminal-justice system, as evidenced by his prior convictions. Finally, Goodwin was advised of his Miranda rights and waived them some time before making his videotaped statement. Immediately before making his videotaped statement, he was asked again if he had signed and initialed the waiver form, and he answered that he had. This argument has no merit.
Goodwin’s last reason for excluding his statement is that police officers threatened him with the electric chair and with physical violence if he did not confess. Although Goodwin testified that such threats were made, the police officers involved in his interrogation denied it. Nor was there any evidence of threats on the videotaped portion of Goodwin’s statement or any physical evidence of force being used on Goodwin. As this court has previously stated:
The evaluation of the credibility of witnesses who testify at a suppression hearing about the circumstances surrounding an appellant’s custodial confession is for the trial judge to determine, and this court defers to the position of the trial judge in matters of credibility. 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 is the person most interested in the outcome of the proceedings.
Bell v. State, 371 Ark. 375, 384, 266 S.W.3d 696, 704 (2007) (citations omitted). The circuit judge believed the police officers as already noted in this opinion. We conclude that the circuit judge did not abuse his discretion in finding that Goodwin’s statement was not the result of threats and intimidation.
III. Foundation for Photographs
For his last point on appeal, Goodwin argues that certain photographs of the injuries sustained by Mrs. Word were erroneously admitted into evidence over his objection. Although conceding that Sergeant Bolton, who was present at the crime scene, described what was depicted in each photograph, Goodwin asserts that there was no testimony that the photographs fairly and accurately represented Mrs. Word’s injuries. He argues, as a result, that a foundation was not properly established for the admission of Mrs. Word’s photographs under Rule 901 of the Arkansas Rules of Evidence.
Rule 901(a) of the Arkansas Rules of Evidence (2007) reads that “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” The photographs that Goodwin challenges were admitted upon the authentication of Sergeant Bolton. Although Sergeant Bolton represented that the pictures were taken by the Sheriff s department, it was not clear from his testimony that he was present when the pictures were taken or able to verify that the photographs taken of Mrs. Word were an accurate representation ofMrs. Word’s injuries. This error, however, was, to a great extent, invited by Goodwin’s counsel during his objection to the admission of the photographs. When asked what his foundation contention specifically was, defense counsel responded:
Well, I don’t want to say too much because I don’t want to help the State, but I just contend under the rules that he hasn’t asked or laid a sufficient foundation by questioning this witness as to these photographs.
Had defense counsel objected with specificity to Sergeant Bolton’s ability to verify that the pictures were an accurate representation of Mrs. Word’s injuries, the State could have attempted another means of verification or could have introduced the photographs through another witness. See Phillips v. State, 361 Ark. 1, 4, 203 S.W.3d 630, 632 (2005) (noting, in the context of a directed-verdict motion, that the reason for requiring the defense to clearly and specifically articulate deficiencies in the State’s case is to allow the circuit court to provide an opportunity for the State to rectify the deficiency).
At any rate, the error was harmless. As this court has previously noted:
[E]ven when a circuit court errs in admitting evidence, this court will affirm the conviction and deem the error harmless if there is overwhelming evidence of guilt and the error is slight. To determine if the error is slight, this court looks to see whether the defendant was prejudiced by the erroneously admitted evidence. Prejudice is not presumed, and this court will not reverse a conviction absent a showing of prejudice by the defendant. When the erroneously admitted evidence is merely cumulative, there is no prejudice, and a conviction will not be reversed for harmless error in the admission of evidence.
Eastin v. State, 370 Ark. 10, 21-22, 257 S.W.3d 58, 67 (2007) (citations omitted). Here, Goodwin fails to assert that any prejudice resulted from the admission of the photographs. Moreover, the witness who testified just after Sergeant Bolton was the victim, Mrs. Word, who testified that the photographs depicted her injuries as they existed in the ambulance and at the hospital on the day of the robbery. Even if the circuit court had sustained Goodwin’s objection, the photographs regarding Mrs. Word’s injuries could have been admitted into evidence during Mrs. Word’s testimony. We affirm the circuit judge on this point.
An examination of the record has been made in accordance with Ark. Sup. Ct. R. 4-3(h) and Ark. R. App. P.-Crim. 14, and it has been determined that there were no rulings adverse to Goodwin that constituted prejudicial error.
Affirmed. ing Appellee Theresa Webb’s motion to expunge the record of her conviction for felony theft of property. For its sole point on appeal, the State asserts that the circuit court erred as a matter of law in granting the motion to expunge under Ark. Code Ann. § 16-93-303 (Repl. 2006), because Webb pled not guilty and was found guilty by the court. As this is an appeal by the State following a felony prosecution, our jurisdiction is pursuant to Ark. R. App. P.-Crim. 3(b) (2007). Because we hold that Webb’s sentence is void to the extent that it is in accordance with Ark. Code Ann. § 16-93-303, we reverse and remand for new sentencing.
Because the circuit court found that “the elements of capital murder include the offense of aggravated robbery,” Goodwin was not sentenced for his conviction of aggravated robbery.
An amended criminal information was filed on January 2,2007, involving the same charges.
After Goodwin was sentenced to life imprisonment, the prosecutor moved to nolle prosequi the remaining charges of possession of a firearm by a convicted felon, theft of a firearm, and forgery. This motion was granted by the circuit court on March 1,2007. | [
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Donald L. Corbin, Justice.
Appellant ChartOne, Inc., appeals the order of the Jefferson County Circuit Court granting Appellee Roosevelt Raglon’s motion for class certification pursuant to Ark. R. Civ. P. 23. On appeal, ChartOne argues that the trial court erred in granting class certification because (1) the class definition presents no feasible means for identifying class members; (2) there is no statutory prohibition against ChartOne charging a fee for the service of mailing records; and (3) Raglon failed to sustain his burden of proof with regard to the requirements of predominance, superiority, and typicality. This court assumed jurisdiction of this case pursuant to Ark. Sup. Ct. R. l-2(d). We affirm.
Facts
ChartOne is a health-information management company that provides copying services of medical records for doctors, hospitals, and other medical-care providers throughout Arkansas. Raglon, who had requested and paid for a copy of his medical records, filed his first amended complaint against ChartOne on February 5, 2007. The complaint alleged that ChartOne charged fees in excess of those allowed by statute for copying medical records and also charged for shipping and postage that it either did not incur or was reimbursed for by the medical-care provider. Raglon alleged that ChartOne’s actions constituted a statewide deceptive practice in violation of Ark. Code Ann. § 16-46-106 (Repl. 1999), the Arkansas Deceptive Trade Practices Act (ADTPA), codified at Ark. Code Ann. §§ 4-88-101 to -115 (Repl. 2001), and common law. Raglon sought to bring the action on his own behalf, as well as all those similarly situated, requesting that the court certify the matter as a class action, with Raglon as the named representative. Raglon requested declaratory and injunctive relief under the ADTPA and sought compensatory and punitive damages, as well.
ChartOne opposed Raglon’s motion for class certification, arguing that the proposed class definition was ambiguous and contained no objective criteria by which to ascertain the members of the class. In addition, ChartOne argued that Raglon failed to sustain his burden of proving that the six required elements for certifying a class action under Rule 23 had been satisfied.
The circuit court held a hearing on the motion for class certification on April 5, 2007. At the hearing, Tonya Jones, a corporate representative for ChartOne, testified regarding ChartOne’s billing practices in Arkansas. Specifically, Jones testified that it was unclear whether base charges or clerical charges were actually notary fees. Jones went on to state that ChartOne did not maintain any records to show whether a notary was requested or charged and that the company would have to pull every request ever received to determine if a notary service was requested. With regard to the data sheets maintained by ChartOne, Jones testified that they contained all the information that is on an invoice, including clerical fees, base fees, the date of the charges, who the invoice is sent to, the amount paid, the amount billed, and the number of pages copied. Jones also testified that within the last six years, ChartOne had billed its customers a percentage of the invoice for shipping and handling. Finally, she stated that some medical providers did reimburse ChartOne for postage.
At the conclusion of the hearing, the circuit court took the motion for class certification under advisement. In an order dated June 5, 2007, the circuit court granted Raglon’s motion for class certification and defined the class as
[a]ny person designated by ChartONE as (a) a “patient”; or (2) “attorney,” including Plaintiff and all similarly situated persons, from the period of time beginning on January 1,1994 to the present (“Class Period”) who requested a copy of medical records from a healthcare provider located in Arkansas and who paid ChartONE (1) base fees, clerical fees, retrieval fees and/or page fees as part of a charge for copying medical records, which resulted in charges being in excess of $5 for the first five pages and 25j¿ for each page thereafter; and/or (2) shipping charges.
Excluded from the class are the agents, affiliates and employees of the Defendant and the assigned judge and his/her staff, and members of the appellate court and their staff.
The circuit court concluded that the above-stated definition was sufficient to objectively identify members of the class. Additionally, the court concluded that the requirements of Rule 23 had been satisfied. From that order, comes the present appeal.
Standard of Review
At the outset, we note that certification of a lawsuit as a class action is governed by Rule 23. Circuit courts are given broad discretion in matters regarding class certification, and we will not reverse a circuit court’s decision to grant or deny class certification absent an abuse of discretion. See Teris, LLC v. Golliher, 371 Ark. 369, 266 S.W.3d 730 (2007); Asbury Auto. Group, Inc. v. Palasack, 366 Ark. 601, 237 S.W.3d 462 (2006). When reviewing a circuit court’s class-certification order, this court reviews the evidence contained in the record to determine whether it supports the circuit court’s decision. Teris, 371 Ark. at 372, 266 S.W.3d at 732. This court does not delve into the merits of the underlying claims at this stage, as the issue of whether to certify a class is not determined by whether the plaintiff has stated a cause of action for the proposed class that will prevail. See Am. Abstract & Title Co. v. Rice, 358 Ark. 1, 186 S.W.3d 705 (2004).
Rule 23 provides in relevant part:
(a) Prerequisites to Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties and their counsel will fairly and adequately protect the interests of the class.
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. At an early practicable time after the commencement of an action brought as a class action, the court shall determine by order whether it is to be maintained. For purposes of this subdivision, “practicable” means reasonably capable of being accomplished. An order under this section may be altered or amended at any time before the court enters final judgment. An order certifying a class action must define the class and the class claims, issues, or defenses.
Under Rule 23, the following six requirements must be met before a lawsuit can be certified as a class action: (1) numerosity, (2) commonality, (3) typicality, (4) adequacy, (5) predominance, and (6) superiority. See Teris, 371 Ark. 369, 266 S.W.3d 730. Having set forth our standard of review, we now turn to the points on appeal.
I. Class Definition
For its first point on appeal, ChartOne argues that the trial court erred in granting the motion for class certification, because the class definition presents no feasible means for ascertaining the members of the class. Specifically, ChartOne argues that the class as defined suffers the fatal defect that the circuit court cannot determine in any reasonable or feasible manner which of ChartOne’s customers are class members. In advancing this argument, ChartOne states that such a determination cannot be made because there is no way of ascertaining the per-page charges without reviewing the actual requests for records that are stored with the patients’ medical files, mainly because it is unable to determine if a notary fee was charged or not. ChartOne further avers that it is simply not feasible to conduct a file-by-file review of confidential medical records that could number over 120,000 files. Raglon counters that class members can be identified by objective criteria, including ChartOne’s own billing records. With regard to the notary-fee issue, Raglon avers that any issue that may arise regarding a notary fee is a damages issue and does not render the class definition defective. We agree with Raglon.
In addressing the issue of class definition, this' court has recently said:
It is axiomatic that in order for a class action to be certified, a class must exist. The definition of the class to be certified must first meet a standard that is not explicit in the text of Rule 23, that the class be susceptible to precise definition. This is to ensure that the class is neither “amorphous,” nor “imprecise.” Concurrently, the class representatives must be members of that class. Thus, before a class can be certified under Rule 23, the class description must be sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member of the proposed class. Furthermore, for a class to be sufficiently defined, the identity of the class members must be ascertainable by reference to objective criteria.
Teris, 371 Ark. at 373, 266 S.W.3d at 733 (quoting Van Buren Sch. Dist. v. Jones, 365 Ark. 610, 614, 232 S.W.3d 444, 448 (2006)). We further pointed out in Tens that clearly defining the class ensures that those people who are actually harmed by the defendant’s wrongful conduct will participate in the relief ultimately awarded. See also Ferguson v. Kroger Co., 343 Ark. 627, 37 S.W.3d 590 (2001).
Thus, the issue before us is whether or not the class definition provides a feasible manner to determine class membership. In its brief to this court, ChartOne avers that the present case is distinguishable from that of Lenders Title Co. v. Chandler, 358 Ark. 66, 186 S.W.3d 695 (2004). There, Lenders challenged the sufficiency of the class definition set out by the trial court as being too broad and impermissibly requiring the trial court to inquire into the facts of each individual case in order to determine whether a person was a class member. Lenders also argued that there was no administratively feasible way of identifying the class members because it would require a manual review of more than 50,000 of its closing files. We rejected Lenders’s argument and ultimately held in part:
We are not persuaded by the argument that it is not administratively feasible for Lenders to have to manually review each of the more than 50,000 closing files to identify the class members. Instead, we agree with Chandler that Lenders should not be allowed to defeat class certification by relying on its inadequate filing and record system. The fact that Lenders cannot discover such information by the push of a button on a computer does not render the class identification any less administratively feasible. Administratively feasible does not mean convenient. Were Lenders to succeed on this point, it would undoubtedly encourage other businesses to keep bad records for the purpose of avoiding class actions. We thus affirm on this point.
Id. at 75-76, 186 S.W.3d at 700-01.
ChartOne avers that, unlike the situation in Lenders, it was wholly appropriate for it to keep the medical-records requests with the patients’ files and that such a practice was a sound business judgment. Missing from this argument is an explanation of how the failure to maintain any record keeping beyond the data sheets is a sound business practice. We are thus unpersuaded by ChartOne’s argument in this regard for two reasons. First, the data sheets produced by ChartOne are, at the least, a beginning method for identifying potential class members. Those sheets include a customer identification number, information regarding whether that customer was charged a base fee, clerical fee, or per-page fee, as well as the amounts charged for such fees. Additionally, the data sheets reflect whether a customer was charged a postage or shipping fee. According to Ms. Jones, the ChartOne corporate representative, those data sheets allow the company to tell which invoices were paid and how much was paid.
We are cognizant that ChartOne attempts to circumvent this fact by arguing that it has no way of determining from the data sheets if a notary fee was charged and, thus, it cannot ascertain damages from the data sheets. Specifically, Ms. Jones testified as follows:
Q. Okay. And if the Court determines that ChartOne can charge only the page fee of one dollar for the first five pages and twenty-five cents for each page thereafter, you can determine that total amount of overcharge that was charged to all class members, all patients and all attorneys, from the data sheets that are Exhibit 2, can you not?
A. No, I can’t determine if there was a notary fee in those data sheets.
Q. Okay.
A. So I can’t determine that.
Q. All right. If he says you can’t charge for a notary fee because it’s not in there, and it’s nowhere documented and nobody knows anything about it but you, can you charge — can you calculate the total damages based on the data sheets?
A. Yes.
Q. Okay. And you can also determine the overcharge for each individual invoice based on the data sheets.
A. If— if there is — if a notary fee is not allowed, and there’s only a per page fee, yes.
However, any deficiency in those data sheets involve information that would be needed in the damages stage of the present proceedings. As we have consistently recognized, damages is a separate issue. Farmers Ins. Co., Inc. v. Snowden, 366 Ark. 138, 233 S.W.3d 664 (2006).
Second, ChartOne’s argument that they have no way of identifying class members without going back and searching hundreds of thousands of private medical records is insufficient to defeat the class definition. Despite ChartOne’s attempt to distinguish this case from Lenders, we believe that the rationale underlying our decision in that case is wholly applicable in the present case. Much of Ms. Jones’s testimony at the class-certification hearing, as well as her deposition testimony, focused on the fact that ChartOne has inconsistent billing and record-keeping practices. Ms. Jones tried to explain the inconsistencies by stating that ChartOne had upgraded its billing system several times, resulting in differing practices, and that regulations regarding billing vary from state to state. Whatever the reason, the fact that ChartOne failed to maintain and store sufficient records is not the fault of Raglon or the class. We simply do not see how it was an “appropriate business practice” to maintain the only detailed invoice with the patients’ medical records. Moreover, ChartOne’s assertion that being forced to review medical records is not administratively feasible is unavailing. As we recognized in Lenders, administratively feasible does not equate to convenient. Just as we stated in Lenders, if we were to allow ChartOne to defeat the class definition because of its own failure to maintain accurate records, including whether a notary fee was charged or not, we would encourage other businesses to maintain poor records in an attempt to avoid class actions. Thus, we reject ChartOne’s argument regarding the class definition.
II. Interpretation of Section 16-46-106
Next, ChartOne argues that the circuit court erred in certifying this as a class action because its order certifying the class was based, in part, on the court’s erroneous interpretation of section 16-46-106. Specifically, ChartOne alleges that the trial court read into the statute a prohibition that is simply not there; namely, that ChartOne is prohibited from charging a fee for postage. According to ChartOne, the statute governs only the charges allowed for copying medical records and does not regulate postage, notary services, or other ancillary services. Moreover, ChartOne argues that because this issue is one of statutory interpretation that directly impacts the court’s decision to certify the class, we should review this issue de novo. Raglon counters that the trial court properly found that section 16-46-106 does not authorize a charge for shipping and postage but, in any event, the issue of whether the statute allows such a charge or not is not a basis for the class definition. Moreover, Raglon points out that in his first amended complaint, he alleges that the charging of fictitious and excessive postage is a deceptive act in violation of the ADTPA and common law, thus, ChartOne’s argument is irrelevant. We agree.
ChartOne’s argument on this point is unavailing, as it has mischaracterized the nature of the circuit court’s order. In its order, the court, under the heading “Findings of Fact,” stated as follows:
Without making a determination of credibility and without considering the merits of the claims, thefollowing is the type of common proof that might be presented, which supports the procedural decision to certify this case as a class action[.]
(Emphasis added.) The order then sets forth examples of such common proof, including: “Arkansas law does not authorize a charge for shipping or postage as part of the allowed charges for copying medical records.” Although ChartOne argues that in order to sustain the class as defined, this court must approve of the circuit court’s interpretation of section 16-46-106, we do not agree. The portion of the class definition concerning the charging of postage or shipping is not limited to section 16-46-106. As Raglon points out, he alleges that ChartOne violated the ADTPA and common law by charging fictitious postage or shipping charges. Simply put, the class is not as narrowly defined as ChartOne’s argument suggests.
Moreover, the issue of whether ChartOne charged excessive or fictitious postage or shipping charges goes to the underlying merits of this case. As recognized by ChartOne, it is improper for this court to consider the merits of the underlying lawsuit in reviewing the appropriateness of a class-certification order. See Mittry v. Bancorpsouth Bank, 360 Ark. 249, 200 S.W.3d 869 (2005). We are not persuaded by ChartOne’s reliance on Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), for the proposition that we may delve into the merits in order to analyze the factors under Rule 23. In sum, the issue of whether section 16-46-106 allows ChartOne to charge for postage or shipping is immaterial to our review of the requirements of Rule 23. Accordingly, this argument provides no basis for reversing the order granting class certification.
III. Rule 23 Requirements
Next, ChartOne argues that the circuit court erred in certifying this as a class action because Raglon failed to sustain his burden of proof that all the elements of Rule 23 have been satisfied. Specifically, ChartOne claims that Raglon failed to establish the elements of predominance, superiority, and typicality. To the contrary, Raglon asserts that the circuit court properly found that all of the elements of Rule 23 had been satisfied.
a. Predominance
In arguing that the predominance requirement has not been satisfied, ChartOne avers that this court is charged with the task of determining whether the circuit court’s order identified issues for the elements of Raglon’s claim that predominate over the inconsequential questions. Citing to this court’s opinion in Williamson v. Sanofi Winthrop Pharmaceuticals, Inc., 347 Ark. 89, 60 S.W.3d 428 (2001), ChartOne avers that if determinative questions cannot be answered en masse, the predominance requirement has not been met. ChartOne then argues that the circuit court deemed only one issue to predominate over the others: “Whether the prices charged by ChartONE exceed the amounts allowed by Ark. Code Ann. § 16-46-106[.]” This conclusion was in error, according to Chart-One, because in order to determine that predominating question, the fact-finder would have to engage in individualized inquiries that are specific to each class member. Raglon counters that his claim, as well as the claims of any class members, all arise from ChartOne’s uniform practice of charging Arkansas consumers inflated prices for copying medical records and for fictitious and excessive postage expenses; thus, according to Raglon, this common practice gives rise to predominating issues, both of fact and law. Moreover, Raglon asserts that simply because individual issues may exist, the element of predominance is not defeated.
Rule 23(b) requires that “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members [.]” In Georgia-Pacific Corp. v. Carter, 371 Ark. 295, 265 S.W.3d 107 (2007), this court noted that the starting point in examining the predominance issue is whether a common wrong has been alleged against the defendant. If a case involves preliminary, common issues of liability and wrongdoing that affect all class members, the predominance requirement of Rule 23 is satisfied even if the circuit court must subsequently determine individual damage issues in bifurcated proceedings. See Johnson’s Sales Co., Inc. v. Harris, 370 Ark. 387, 260 S.W.3d 273 (2007). We have recognized that a bifurcated process of certifying a class to resolve preliminary, common issues and then decertifying the class to resolve individual issues, such as damages, is consistent with Rule 23. See id. In addition, we have said that
[t]he predominance element can be satisfied if the preliminary, common issues may be resolved before any individual issues. In making this determination, we do not merely compare the number ofindividual versus common claims. Instead, we must decide if the issues common to all plaintiffs “predominate over” the individual issues, which can be resolved during the decertified stage of bifurcated proceedings.
Carter, 371 Ark. 295, 301, 265 S.W.3d 107, 111 (quoting Asbury, 366 Ark. at 610, 237 S.W.3d at 469). If, however, the preliminary issues are individualized, then the predominance requirement is not satisfied. Johnson Sales, 370 Ark. 387, 260 S.W.3d 273.
We must thus determine whether there is a predominating question that can be answered before determining any individual issues regarding damages. In addressing the issue of predominance, the circuit court found that the issue of whether the prices charged by ChartOne exceeded those allowed under section 16-46-106 was the single most common issue that predominated over all others. This finding was not an abuse of discretion. ChartOne’s billing practices, whether they be for the copying of records or for shipping or postage, are the central issue of this litigation. Raglon alleges that ChartOne engaged in a deceptive scheme to overcharge its customers in violation of statutory and common law; thus, the issue of whether ChartOne overcharged its customers is a predominating question. We simi larly held that the issue of whether a defendant engaged in a fraudulent scheme predominated over any individual issues in Seeco, Inc. v. Hales, 330 Ark. 402, 954 S.W.2d 234 (1997). Accordingly, ChartOne’s argument that the element of predominance is not satisfied is without merit.
b. Superiority
ChartOne argues that the circuit court erred in determining that the element of superiority had been satisfied because individual issues create insurmountable manageability problems. According to ChartOne, it will be necessary for the fact-finder to make customer-specific determinations about what services were requested and subsequently provided. ChartOne also argues that there are more expeditious avenues for pursuing this action. Raglon argues that the trial court correctly determined that a class action was the superior method of proceeding, particularly because of the large number of persons affected and the relatively small amount of potential claims.
Rule 23(b) requires “that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” This court has repeatedly held that the superiority requirement is satisfied if class certification is the more “efficient” way of handling the case, and it is fair to both sides. See Beverly Enters.-Ark., Inc. v. Thomas, 370 Ark. 310, 259 S.W.3d 445 (2007); Van Buren, 365 Ark. 610, 232 S.W.3d 444. Where a cohesive and manageable class exists, we have held that real efficiency can be had if common, predominating questions of law or fact are first decided, with cases then splintering for the trial of individual issues, if necessary. Van Buren, 365 Ark. 610, 232 S.W.3d 444. This court has further stated that when a circuit court is determining whether class-action status is the superior method for adjudication of a matter, it may be necessary for the circuit court to evaluate the manageability of the class. Id. Furthermore, the avoidance of multiple suits lies at the heart of any class action. Beverly, 370 Ark. 310, 259 S.W.3d 445.
In addressing the requirement of superiority, the circuit court concluded that resolution of the central issues in this case was superior to the adjudication of those common issues in individualized proceedings that could number in the thousands. Moreover, the court took into consideration the fact that because of the size of the potential claims, they might otherwise go unaddressed. The trial court thus reasoned that the efficiency of resolving the predominating central issues established the superiority of resolving this matter as a class action. We agree.
As we explained, the common, predominating issue is whether ChartOne engaged in a scheme to overcharge customers for copying charges, as well as postage and shipping. This common question can be answered and, if necessary, subsequent trials can be held on any individual issues. ChartOne’s assertion that the court would have to conduct an individualized inquiry into what services were requested and provided does not defeat the finding of superiority, as any such inquiry would go to damages and could be handled in a bifurcated proceeding. Moreover, simply because the number of potential class members may number in the thousands does not render this matter unmanageable as a class action. To the contrary, the large number of potential class members, and the relatively small size of their claims, favors a finding of superiority. Finally, proceeding as a class action is fair to both sides. Each side can present evidence regarding the predominating question of whether ChartOne engaged in a deceptive scheme. Accordingly, the trial court did not err in concluding that a class action was the superior method for handling this case.
c. Typicality
Finally, ChartOne argues that Raglon failed to demonstrate that the element of typicality had been satisfied. Specifically, ChartOne argues that Raglon’s claims are not typical of the proposed class, as any claim against ChartOne stemming from its charges will vary from person to person. Raglon asserts that his claims are typical of those of the class, as he and all class members were charged inflated prices for copying medical records and for fictitious postage expenses.
Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class[.]” This court has described the typicality requirement as follows: “[T]he typicality requirement is satisfied where the event or practice or course of conduct that gives rise to the claim of other class members is the same event or practice or course of conduct that gives rise to the plaintiffs injury, and where the claim is based upon the same legal theory.” Asbury, 366 Ark. at 609, 237 S.W.3d at 468 (quoting Van Buren, 365 Ark. at 619, 232 S.W.3d at 451). We also stated that “[t]he class representative’s claim must only be typical and not identical.” Id. (quoting Van Buren, 365 Ark. at 619, 232 S.W.2d at 452).
In determining that typicality had been met, the circuit court concluded that Raglon’s claims were typical of all patients or their attorneys who requested copies of medical records from a medical-care provider. The court pointed out that Raglon and the class allege the same unlawful conduct by ChartOne and a resolution of the central issues of whether ChartOne overcharged its customers will resolve all class members’ claims; thus, making the claims typical. A similar result was reached by the circuit court and affirmed by this court in Asbury, 366 Ark. 601, 237 S.W.3d 462. There, this court held that the element of typicality was satisfied where the claims of the class members all arose out of the same conduct; namely, the charge of a documentary fee by the car dealers. Likewise, here the claims of the class members all arose out of ChartOne’s practices of charging for the copying of medical records. Accordingly, the trial court did not abuse its discretion in concluding that the element of typicality was satisfied.
Affirmed.
Section 16-46-106 was amended pursuant to Act 662 of2007. As the amendments to this section took effect after entry of the court’s order granting the motion for class certification, we are concerned only with the prior version of the statute. | [
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Robert L. Brown, Justice.
Appellant Michael B. Daniels appeals from a jury verdict finding him guilty of capital murder and aggravated robbery. Daniels, who had committed two prior serious violent felonies, received a mandatory life sentence for the aggravated-robbery conviction. For the capital-murder conviction, the jury sentenced Daniels to death by lethal injection. We affirm the judgment of conviction for premeditated and deliberated capital murder but reverse and remand for resentencing. We reverse the judgment of conviction for capital-felony murder and aggravated robbery and remand for further proceedings.
On January 8, 2006, Daniels stabbed James Williams at least three times at an Exxon gasoline station and store in Warren. The store’s security camera captured a video recording, but not an audio recording, of the attack. At trial, the videotape and witness testimony established the following events. At about 2:30 a.m. on the day of the murder, Williams arrived at the Exxon station. He was a regular customer in the early morning hours. The night before, he had shown Reggie Conner, the store’s cashier, a card game, “three-card monty,” in which Williams would move three cards, two black and one red, around and ask another person to pick the red card. Conner denied ever having seen Williams play the game for money.
That morning, Daniels came into the store briefly and then left. He returned to the store about half an hour later, at around 6:00 a.m., and began playing cards with Williams. A short time later, Conner heard an argument begin, with Daniels telling Williams, “Yeah, you’re going to give me my money back,” and Williams replying, “No, I ain’t going to give you no money back.” According to Conner, Williams also told Daniels that Daniels was not “going to take nothing from [him] unless it’s an ass whupping.”
Although the store security camera does not provide a view of the area where the men were gambling, it did record the result of this argument. Daniels stepped into the frame, obviously agitated. A moment later, he pulled a very long knife from his clothing and advanced on Williams, causing both Williams and Conner to retreat behind the store’s counter followed by Daniels. According to Conner, Daniels repeatedly said, “I want my money.” Conner testified that Williams then reached into his pocket, pulled out “some money,” and dropped it on the counter. To this, Daniels replied, “I want it all.”
Conner then jumped over the counter and paused a moment, apparently reaching for the telephone. According to Conner, he was about to call the police at Williams’s request, when Daniels told him, “I wouldn’t do that if I were you.” Conner left the store and called the police from a borrowed cellular phone. Inside the store, the two men continued struggling, and Daniels eventually forced Williams onto the floor. A further struggle ensued, with Daniels reaching down toward Williams with the knife in his hands and jabbing at him with the knife. The store camera then clearly shows him drawing up and raising the knife over his head before bringing it down and stabbing Williams in the abdomen. The struggle continued, but after the stabbing Williams was able to return to his feet and retreat toward the back of the store. Eventually, Daniels broke off the attack and turned to leave the store. He looked back and gesticulated at Williams, who had begun to follow him.
Daniels left the store and fled on his bicycle after telling Conner, “You didn’t see me.” Williams also left the store and drove himself to the hospital. Shortly after arriving at the hospital, Williams died of his injuries. Medical testimony established that Williams had three wounds: one to his scalp, one to his chest that was stopped by a bone, and one to his abdomen that passed through the liver and punctured at least two major veins and arteries. According to the medical examiner, the first and second wounds would not usually be fatal, but it was the third wound that was the most proximate cause of death.
Warren police officers arrived at the Exxon station very shortly after Daniels and Williams left. Conner identified Daniels, whom he and the responding police officers knew by name and appearance, as the perpetrator and pointed to him as he was fleeing on his bicycle. The police officers apprehended him. Two pocket knives were found on Daniels, but the large knife used in the stabbing was not recovered at that time. It was later found hidden in the back seat of the police car where Daniels was placed after his arrest. Laboratory tests later identified blood stains on the knife as belonging to Williams.
Daniels was subsequently charged with both premeditated and deliberated capital murder and capital-felony murder based on aggravated robbery. He was further charged with aggravated robbery.
The jury trial commenced on February 13, 2007, and lasted three days. The State’s case essentially consisted of the police officers, Conner, the medical examiner, and the videotape. At the conclusion of the State’s case, counsel for Daniels moved for a directed verdict on the aggravated-robbery charge on the basis that all Daniels wanted was his money back and, therefore, there “was no intent to commit theft and aggravated robbery.” He further argued that you would have to speculate to find that by saying, “I want it all,” Daniels meant more than just his gambling losses. The prosecutor responded that, regardless of whether Daniels was referring to the gambling losses or all of Williams’s money, it was not Daniels’s property.
The court responded:
You know, you can’t, can’t legally gamble in Arkansas, and you can’t enforce gambling debts. So whose, whose property was it? It’s a fact question. So I’m going to deny the motion, but it may turn out the way Mr. Colvin is arguing. But I think it is a fact question.
Defense counsel also moved for a directed verdict on the premeditated-murder charge and argued that the attack was the result of a card game and there was no premeditation or deliberation. The court denied that motion as well.
Daniels next testified in his own defense. He stated that during his second stop at the Exxon station, he and Williams began playing cards. At first, they did not bet any money, and Daniels won repeatedly. After several rounds, Daniels bet twenty dollars on the outcome of the next game. In his testimony, Daniels claimed that Williams cheated him, which caused Daniels to lose twenty dollars. Daniels’s account of the incident that followed was that he drew his knife after seeing something shiny, possibly a knife or a gun, in Williams’s hand. Daniels pointed out that he had a cut on his hand after the attack, which was verified by a Warren police officer and by a videotape taken at the police station following Daniels’s arrest.
He also admitted to “tussling” with Williams and to being the person shown on the security camera’s videotape but claimed that he never told Conner not to telephone the police. He claimed at one point that he could not remember ever stabbing Williams and at another point that he attacked Williams as a reaction to being angry and seeing something shiny. He admitted to having the knife on him when he was arrested but later denied knowing how his knife got in the back of the police car and claimed that someone else must have stabbed Williams with it after Daniels left the Exxon station.
At the end of all the evidence, defense counsel again moved for a directed verdict on the aggravated-robbery charge and argued that Daniels was only trying to recoup money “on a illegal debt.” The circuit court ruled:
Just who this property belonged to at the time, I guess, is a matter for the jury to decide. ... You may well argue to the jury there wasn’t a theft here, and so there can’t be a robbery, and, therefore, there can’t be a capital murder conviction on this theory. But I think it is a jury question, and I’m going to deny your motion.
The renewed motion for a directed verdict on premeditated and deliberated capital murder was also denied.
The jury found Daniels guilty of aggravated robbery and also found him guilty of capital murder based on two independent grounds: (1) committing a killing during the course of an aggravated robbery under circumstances manifesting extreme indifference to the value of human life and (2) committing a premeditated and deliberated killing. Having been convicted of two or more serious violent felonies, Daniels was automatically sentenced by the circuit court to life imprisonment for the aggravated robbery.
During the sentencing phase of the trial that followed, additional witnesses testified. In addition to hearing victim-impact statements from Williams’s wife and daughter, the jury learned that, on March 22, 2006, Daniels pled guilty to two counts of first-degree battery arising from an incident in which he stabbed two people. While pleading guilty, Daniels explained to the judge, “I was on the porch, got drunk. They got to talking to me. I got angry and I stabbed both of them.”
The jury also heard from Daniels’s brother, who described the disadvantaged circumstances in Chicago in which they both grew up and Daniels’s trouble coping with normal situations and reacting appropriately to perceived threats. The jury further heard conflicting reports from two psychologists who had assessed Daniels’s competency. One psychologist, Charles Spellman, who had performed a competency evaluation in 2005 when battery charges were pending against Daniels, testified for the defense that he had diagnosed Daniels as mildly retarded, with an IQ of sixty-four, while another psychologist, Michael Simon, who performed a competency examination in connection with the stabbing of Williams, testified for the State and classified Daniels in the borderline range, with an IQ of 75. Simon also found that Daniels was malingering by trying to present himself as more mentally ill than he actually was.
The jury specifically found that Daniels was not mentally retarded at the time of the offense. The jury also unanimously found the existence of two aggravating circumstances: (1) that Daniels had previously committed another felony involving the use or threat of violence or creating a substantial risk of death or serious physical injury to another person and (2) that Daniels committed the murder for pecuniary gain. As a mitigating factor, all of the jurors found that, since an early age, Daniels probably suffered from a low threshold for provocation and had shown a propensity to overreact to external stimuli. The jury unanimously concluded that the State had proved beyond a reasonable doubt one or more aggravating circumstances, that those circumstances outweighed beyond a reasonable doubt any mitigating circumstances found by any juror, and that the aggravating circumstances justified beyond a reasonable doubt a sentence of death. Daniels was subsequently sentenced by the circuit court accordingly.
I. Substantial Evidence
Daniels first claims that the circuit court erred in denying his motions for directed verdict as to both capital-felony murder and premeditated and deliberated capital murder. Daniels states that his conviction for capital-felony murder cannot be sustained if there is insufficient proof of his intent to commit an aggravated robbery. In that connection, he argues that, during the attack, he was only trying to retake possession of money he had lost while gambling. He relies on this court’s decision in the case of Davidson v. State, in which this court held that a person cannot commit robbery by retaking by force money that has been lost gambling. 200 Ark. 495, 139 S.W.2d 409 (1940). In this regard, he asserts that there was no testimony offered to disprove the fact that he was merely attempting to regain money he lost during a card game with Williams.
The State counters that Davidson does not apply because the jury was free to discredit Daniels’s claim that he was trying to recover gambling losses from Williams. Moreover, the State notes that Davidson had to do with a jury instruction, which was not an issue presented in this case. In the alternative, the State argues that Davidson should be overruled.
As to premeditation and deliberation, Daniels argues that the undisputed video evidence demonstrates that, when Daniels left the scene, Williams was standing and was mobile. This, he maintains, rebuts the charge that he intended to kill Williams. The State, however, argues that the time that passed between the commencement of the attack and the fatal blow was evidence of premeditation and deliberation, as was Daniels’s action in raising the knife far over his head before stabbing Williams. Given the conflicting nature of the evidence, the State argues, the existence of premeditation and deliberation was a question for the jury to decide.
As this court has often said:
This court treats a motion for directed verdict as a challenge to the sufficiency of the evidence. In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Substantial evidence is evidence force&l enough to compel a conclusion one way or the other beyond suspicion or conjecture. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered.
Reese v. State, 371 Ark. 1, 3, 262 S.W.3d 604, 606 (2007) (citations omitted).
a. Aggravated Robbery.
Turning first to Daniels’s motion for a directed verdict on the charge of aggravated robbery, it is clear that, under this court’s holding in Davidson v. State, Daniels could not be convicted of aggravated robbery if he was trying only to recover money that he had lost by gambling with Williams. 200 Ark. 495, 498-99, 139 S.W.2d 409, 410 (1940). The holding in Davidson was based on the fact that, under Arkansas law, a person who loses money gambling may institute a replevin suit to recover that money at any time within ninety days of the loss. Id.; see Pope’s Digest § 6112 (1937); see also Ark. Code Ann. § 16-118-103(a)(l) (Repl. 2006) (containing the current codification of the same law, which has not undergone any significant changes).
“Replevin,” the Davidson court noted, “is a possessory action, and it is essential to its maintenance that the plaintiff should have the right to the present possession of the property sought to be recovered.” Davidson, 200 Ark. at 498, 139 S.W.2d at 410. Therefore, although a person seeking to forcefully recover gambling losses may be guilty of assault or another crime, he or she cannot be guilty of robbery. Id.; see also 67 Am. Jur. 2d Robbery § 19 (2003) (recognizing the traditional rule that “it is not robbery for one who lost money at gambling to compel by force or threats the return of the money lost”); Jack L. Litwin, Annotation, Retaking of Money Lost at Gambling as Robbery or Larceny, 77 A.L.R.3d 1363 (1977) (noting that “generally a charge of robbery or larceny has failed where one who had lost money at gambling compelled by force or threats the return of his gambling losses only”). Although it may be argued that the Davidson rule is not in the “public interest in a peaceful and orderly society,” Litwin, supra, § 2[a], it is nonetheless still good law in Arkansas. Even if this court were to overturn Davidson, it would be inappropriate to retroactively apply the change to Daniels.
In presenting the motion for directed verdict to the judge, defense counsel argued that it was clear from witness testimony that Daniels was attempting to do no more than recover his own money, which had been lost gambling, and that the jury would have to resort to speculation to find that Daniels was attempting to take any additional money. The Davidson case was not specifically argued to the judge. The circuit court, in both its rulings, found that the question of whether the gambled money belonged to Daniels or to Williams was one of fact for the jury. In light of Davidson, however, this ruling was error, because the law in Arkansas is that recovering gambling losses is not theft.
Nevertheless, while it is true that a person cannot commit a robbery, and therefore cannot commit an aggravated robbery, in retaking gambling losses, it is equally clear that, if a person “under the pretext of taking money that he had lost, take[s] additional money,” a robbery has been committed. Davidson, 200 Ark. at 500, 139 S.W.2d at 411. In the case at hand, although the prosecutor speculated during closing argument that Daniels may have taken additional money from Williams, he failed to argue to the jury that Daniels committed an aggravated robbery because he took or intended to take more than just his gambling losses from Williams. Instead, in his closing argument following the guilt phase, the prosecutor plainly stated, “His [Daniels’s] purpose was to get the money that he had lost.” And, again, there was no direct evidence presented that Daniels actually took more than his $20.00 from Williams, and the circuit court limited its rulings following the directed-verdict motions to the gambling losses. In light of the fact that the circuit court erred in denying the motion for directed verdict on aggravated robbery and the fact that the jury was not instructed on Arkansas law as set out in Davidson regarding the absence of theft when gambling losses are recouped, we must reverse the judgment of conviction for aggravated robbery and remand for further proceedings.
b. Capital-Felony Murder.
Because the evidence was insufficient to support a conviction for aggravated robbery, it was necessarily insufficient to support a conviction for capital-felony murder with robbery as the underlying felony. Ark. Code Ann. § 5-10-101(a)(l) (Repl. 2006) (“A person commits capital murder if. . . [t]he person commits or attempts to commit. . . [r]obbery . .. and . . . [i]n the course of and in furtherance of the felony . . . the person . . . causes the death of any person under circumstances manifesting extreme indifference to the value of human life.”). We reverse the judgment of conviction for capital-felony murder and remand for further proceedings.
c. Premeditated and Deliberated Capital Murder.
We turn then to the second judgment for capital murder based on premeditation and deliberation. For this charge, capital murder can only be sustained if there was sufficient evidence for the jury to find that the killing was committed “[w]ith the premeditated and deliberated purpose of causing the death of another person.” Ark. Code Ann. § 5-10-101(a)(4) (Repl. 2006).
This court has said that “[pjremeditated and deliberated murder occurs when it is the killer’s conscious object to cause death and he forms that intention before he acts and as a result of a weighing of the consequences of his course of conduct.” Carmichael v. State, 340 Ark. 598, 602, 12 S.W.3d 225, 228 (2000). Moreover, “[i]n order to prove that an accused acted with a premeditated and deliberated purpose the State must prove: (1) that the accused had the conscious object to cause the death of another; (2) that the accused formed the intention of causing the death before acting; and (3) that the accused weighed in his mind the consequences of a course of conduct, as distinguished from acting suddenly on impulse without the exercise of reasoning power.” Ward v. State, 298 Ark. 448, 451, 770 S.W.2d 109, 111 (1989); see O’Neal v. State, 356 Ark. 674, 682, 158 S.W.3d 175, 180 (2004) (“Deliberation has been defined as weighing in the mind of the consequences of a course of conduct, as distinguished from acting upon a sudden impulse without the exercise of reasoning powers.”) (quoting Ford v. State, 334 Ark. 385, 389, 976 S.W.2d 915, 917 (1998)).
This court has also held that “[t]he necessary premeditation and deliberation is not required to exist for a particular length of time and may be formed in an instant.” Reese v. State, 371 Ark. 1, 3, 262 S.W.3d 604, 606 (2007). It is neither necessary nor usually possible to prove intent by direct evidence. Id. Instead, “a jury may infer premeditation and deliberation from circumstantial evidence, such as the type and character of the weapon used, the nature, extent, and location of the wounds inflicted, and the conduct of the accused.” Id.
In the present case, Daniels stabbed Williams three times with a large knife. One of the stab wounds was located in Williams’s chest, and the fatal wound was to his abdomen. Had this been the only evidence before the jury, the “type and character of the weapon used” and the “location of the wounds inflicted” would support a finding of premeditation and deliberation. Id. Moreover, as the circuit court noted, the store security camera shows that Daniels paused, drawing his knife over his head, before delivering a significant stabbing blow. The same video further demonstrates that Daniels’s attack on Williams did not end at that time. Instead, the two men continued to struggle, with Williams back on his feet within a few seconds of the final stab wound. Despite the fact that Williams was still standing, Daniels broke off the attack, leaving the store aware that Williams was able to walk and was leaving the store behind him.
We are mindful that the California Supreme Court examined a similar situation some years ago in which the appellant shot the deceased after the deceased disregarded the appellant’s order not to approach him. People v. Holt, 25 Cal. 2d 59, 92, 153 P.2d 21, 38 (1944). After being shot, the victim “stopped, turned, and walked around the train and to the station” at which time the appellant “with eight loaded cartridges remaining in his rifle stopped firing . . . [and] permitted the deceased to proceed to the station without further molestation.” Id. The court found that these facts, “established beyond question by prosecution witnesses, [were], in the light of all the circumstances shown, overwhelmingly inconsistent with a deliberate, premeditated, and clear intent to take life.” Id. at 92, 153 P.2d at 39.
Nevertheless, Arkansas’s jurisprudence is at odds with the conclusion reached in People v. Holt, supra. It is clear to this court that the jury could well have concluded that Daniels intended to cause the death of Williams by inflicting multiple stab wounds. See O’Neal, 356 Ark. at 682, 158 S.W.3d at 180; Ward, 298 Ark. at 451, 770 S.W.2d at 111. The fact that Daniels saw Williams standing with his hand over his abdomen and did not see him actually die is not determinative. We affirm the judgment of conviction for capital murder based on premeditation and deliberation.
II. Mandatory Life Sentence
Daniels next contends that, by instructing the jury during the sentencing phase that Daniels was to receive an automatic life sentence for his aggravated robbery conviction, the circuit court strayed from the both the Arkansas Model Jury Instructions and the sentencing procedure outlined by Arkansas statutory law. By so doing, Daniels argues, the circuit court prejudiced the jury in favor of the death penalty. He maintains that, knowing that Daniels was to receive a life sentence for aggravated robbery, the jury was more likely to believe that he should receive a greater sentence for capital murder. He adds that the jury probably thought that if they voted to impose a life sentence for the capital-murder conviction, Daniels would receive no additional punishment for killing Williams.
Because we reverse the aggravated-robbery conviction on other grounds as well as the death sentence and because we do not conclude that this issue is likely to recur on retrial, we do not address it.
The same holds true for Daniels’s points concerning the prosecutor’s comments during voir dire related to mental retardation, the prosecutor’s closing argument during the sentencing phase when he referred to Williams “plead[ing] for his life laying on the floor with his hands together,” and the prosecutor’s closing argument following the guilt phase when he asked the jury, “What are you as a representative of society going to do about it?” We need not address these arguments as the same circumstances are not likely to recur on retrial.
III. Rule 4-3 (h) and Rule 10(b)
The record has been reviewed, and no reversible error has been found pursuant to Supreme Court Rule 4-3(h).
We have also conducted a mandatory review as required by Rule 10(b) of the Arkansas Rules of Appellate Procedure — Criminal and particularly subsection (vi) which asks “whether the evidence supports the jury’s finding of a statutory aggravating circumstance.” We conclude that, in one instance, the evidence does not.
The jury found an aggravator, as already mentioned, of murder “for pecuniary gain.” We have previously discussed in this opinion that recovering gambling losses does not constitute theft under Davidson v. State, 200 Ark. 495, 139 S.W.2d 409 (1940).
Accordingly, because evidence does not exist for an aggravating circumstance based on murder for pecuniary gain as opposed to murder perpetrated in an attempt to recover losses, the finding of this aggravating circumstance must fail. With the elimination of the pecuniary-gain aggravator, only the aggravator dealing with a previous crime of violence and the mitigator of suffering a low threshold for provocation and a propensity to overreact to external stimuli could be weighed by the jury.
The remaining question, then, is whether the error relating to the pecuniary-gain aggravator is harmless error under Arkansas Code Annotated § 5-4-603(d)(l) (Supp. 2007). We conclude it is not. Under § 5-4-603 (d)(1), this court is required to do a harmless-error review under the following circumstances:
(d) (1) On an appellate review of a death sentence, the Supreme Court shall conduct a harmless error review of the defendant’s death sentence if:
(A) The Supreme Court finds that the jury erred in finding the existence of any aggravating circumstance for any reason; and
(B) The jury found no mitigating circumstance.
In the instant case, there was clear error in finding the pecuniary-gain aggravator and a mitigating circumstance was found by the jury. Accordingly, a harmless-error review is not mandated.
Nor do we conclude that harmless error can apply where, in this case, only one aggravator remains to be weighed against one mitigator. The jury simply did not have the opportunity to engage in that analysis and do the required weighing. For this reason, we hold that the death sentence must be reversed and the case remanded for resentencing.
In response to the dissent, the problems with concluding that the theft in this case was solely a jury question are two fold. First, the jury was not instructed on the law in Arkansas under the Davidson case that recovering gambling losses is not theft. Thus, individual jurors could well have convicted Daniels for aggravated robbery and capital-felony murder and found an aggravating circumstance for pecuniary gain solely based on Daniels’s recovery of his losses without being apprised of the Davidson case.
Second, the prosecutor never specifically argued to the jury that the theft was caused by taking more money from the victim than the gambling losses. He alluded to the money found in Williams’s pocket as shown in Footnote 1 of this opinion, but he never argued that any excess money was the basis for the theft charge. Moreover, the circuit court clearly believed the theft solely involved gambling losses, as witnessed by its rulings on the two motions for a directed verdict quoted in this opinion.
Affirmed in part. Reversed and remanded in part.
Glaze and Gunter, JJ., concur in part and dissent in part.
“I find it interesting that on this twenty dollar ($20.00) bet, ’cause Mr.Williams is not here to tell us, but on this twenty dollar ($20.00) bet what he had in his pocket was the one twenty then, then these crinkled up ones and fives [that were found in Daniels’s pocket when he was arrested].” | [
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Tom Glaze, Justice.
The appellants (collectively, Hambay) filed a complaint on behalf of the taxpayers of Carroll County on April 30, 1997, alleging that the appellees in their official capacities had reappraised county real property under Act 758 of 1995 without complying with the rollback provisions of amendment 59 of the Arkansas Constitution. Specifically, Hambay alleged that taxation of part but less than all of the property of a county at a higher reassessed value was illegal.
The appellees filed a motion to dismiss the complaint under Ark. R. Civ. P. 12(b), asserting that the appellants’ claim challenged a tax collection scheme, not an illegal tax, and county courts have exclusive subject-matter jurisdiction over actions for the improper collection of county taxes. The appellees also petitioned the chancery court for summary judgment on the basis that the reappraisal was specifically made under Act 153 of 1955 rather than Act 758.
On August 4, 1997, Hambay filed a second amended complaint that added “Count II,” challenging the enactment of Act 916 of 1995 by alleging that the purpose of the original bill had changed during the legislative process so as to violate article 5, § 21 of the. Arkansas Constitution. Hambay argued that Act 916 was not approved by qualified electors under the Arkansas Constitution, and that the result of Act 916 was to pressure Arkansas voters to approve amendment 74, which required that counties have at least a 25-mill tax for the maintenance and operation of public schools. According to Hambay, Arkansas voters were deprived of their free will in approving the millage requirement of amendment 74, and, therefore, the amendment should be declared null.
The chancery court determined that it lacked subject-matter jurisdiction over the action and issued an order that granted the appellees’ motion to dismiss in an order issued on September 3, 1997. The order also granted the appellees’ motion for summary judgment because it was undisputed that the Carroll County reappraisal was conducted under the provisions of Act 153 of 1955, rather that Act 758 of 1995 as Hambay had pled and argued. Hambay appealed and this court dismissed the case under Ark. R. Civ. P. 54(b) because the chancery court’s order did not address Hambay’s Count II claim as to Act 916 and amendment 74. Hambay v. Williams, 335 Ark. 352, 980 S.W.2d 263 (1998).
Following a hearing, the Carroll County Circuit Court issued a final order on June 29, 2007, affirming the previous rulings that dismissed Hambay’s complaint under Ark. R. Civ. P 12(b) for lack of subject-matter jurisdiction, and that granted summary judgment. The circuit court then held that Hambay’s Count II claim regarding Act 916 and amendment 74 was barred by res judicata because of this court’s decision in Barclay v. Melton, 339 Ark. 362, 5 S.W.3d 457 (1999), striking down Act 916 of 1995 because it had been so altered as to change its original purpose in violation of article 5, § 21 of the Arkansas Constitution. Further, the circuit court held that Hambay’s claim regarding the unconstitutionality of Act 916 was moot because of the voters’ approval of amendment 74, and because the appellants had voluntarily paid the taxes, rather than paid them under protest. Finally, the circuit court held that because there was a lack of a class certification order in the file, the remaining plaintiffs were limited to parties named in the complaint.
Hambay does not challenge the circuit court’s dismissal of Count II regarding Act 916 and amendment 74; however, Ham-bay argues that the trial court erred by: (1) granting summary judgment in favor of Carroll County; (2) refusing to accept jurisdiction; (3) denying class status; and (4) requiring that the taxes be paid under protest. In our previous review of this case, we noted that there was a “question of whether the chancery court could determine that it lacked subject-matter jurisdiction and then address the merits.” Hambay, 335 Ark. at 356, 980 S.W.2d at 265. As already noted above, we did not address that issue because of the lack of a final order. The primary question for us now is whether the chancery court (and subsequently, the circuit court) had subject-matter jurisdiction over the claim; “[w]hen the trial court lacks subject-matter jurisdiction, the appellate court also lacks subject-matter jurisdiction.” Koonce v. Mitchell, 341 Ark. 716, 719, 19 S.W.3d 603, 605-06 (2000).
Like the present case, in Pockrus v. Bella Vista Property Owners Association, 316 Ark. 468, 872 S.W.2d 416 (1994), a suit was filed alleging that the collection of taxes based on a county cyclical reassessment plan was illegal, and the plaintiffs sought to enjoin the collection of the ad valorem taxes. The chancery court granted the relief sought, finding that the cyclical reassessment plan violated amendment 59. On appeal, the Pockrus court stated that “[w]hile we would like to reach the merits of the trial court’s ruling, we find it impossible to do so because that court had no subject-matter jurisdiction of this matter.” Id. at 471, 872 S.W.2d at 417. The Pockrus court further noted that it is “settled law that county courts have exclusive jurisdiction in all matters relating to county taxes.” Id. at 471, 872 S.W.2d at 418 (citing McIntosh v. Sw. Truck Sales, 304 Ark. 224, 800 S.W.2d 431 (1990); Ark. Const, art. 7, § 28). Our court in Pockrus also pointed out that “this court has strictly adhered to the rule that, if the taxes complained of are not themselves illegal, a suit for illegal exaction will not lie,” and that “a flaw in the assessment or collection procedure, no matter how serious from the taxpayer’s point of view, does not make the exaction itself illegal.” Id. at 472, 872 S.W.2d at 418. In addition, the Pockrus court found that the ad valorem taxes the plaintiffs there sought to enjoin were “unquestionably” authorized by law, and that the complaint “effectually questions only the reassessment procedure or plan employed by the county assessor and collector as being a flawed one.” Id. Because the complaint only challenged the reassessment procedure or plan, the action did not involve a void or illegal tax assessment; the court reversed and dismissed the appeal because “the chancery court was without power to hear this matter.” Id.
Such is the case in the present appeal. It is undisputed that the Carroll County reappraisal was conducted under the provisions of Act 153 of 1955, and Hambay never alleged that Act 153 was an illegal or unauthorized tax provision. Although some language in Hambay’s complaint broadly stated that the taxes themselves were illegal, the specific allegations did not support that argument. Instead, the complaint asserted a claim against “the collection of taxes pursuant to provisions of Act 758 of 1995, set forth in ACA 26-26-305” and “the taxation of part but less than all of the property of a county at a higher reassessed value.” Further, Hambay alleged the following:
When there is a countywide reappraisal of property for ad valorem tax purposes which is conducted over a period of two or more years, fairness and equity demand that taxes not be assessed on the new appraised values of any property in the county until all property therein has been reappraised . . .
As in Pockrus, these arguments effectively allege that the reassessment and collection scheme used by Carroll County was an unconstitutional violation of amendment 59, and do not challenge an illegal tax. The taxes that are the subject of this action are ad valorem taxes. Ad valorem taxes are legal in this state. See Ark. Const, art. 16, § 5; Barker v. Frank, 327 Ark. 589 (1997). “If the taxes complained of are not themselves illegal, a suit for illegal exaction will not lie.” Pockrus, 316 Ark. at 472, 872 S.W.2d at 418. Accordingly, Pockrus controls and we affirm the trial court’s dismissal of the action for lack of subject-matter jurisdiction. Further, as in Pockrus, because the trial court lacked subject-matter jurisdiction, this court may not address the merits and remaining issues of the claim; the appeal is dismissed without prejudice. Weiss v. Johnson, 331 Ark. 409, 961 S.W.2d 28 (1998) (in actions where the trial court lacked subject-matter jurisdiction, this court reverses [or affirms] and dismisses the case without prejudice).
Act 153 of 1955 is codified at Ark. Code Ann. § 26-26-304 (Supp.2007). Act 758 of 1995 was codified at Ark. Code Ann. § 26-26-305 (Repl. 1997), but was repealed by Act 836 of 1997. See Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000).
Act 916 added a 10 percent income tax surcharge for residents of counties that had not approved a tax of 25 mills for the maintenance and operation of county public schools. | [
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Donald L. Corbin, Justice.
Appellant Office of Child Support Enforcement (OCSE) appeals from an order of the Jefferson County Circuit Court declining to exercise jurisdiction to modify an order of child support. On appeal, OCSE argues that in declining to exercise its jurisdiction, the trial court erroneously considered collateral issues outside the scope of the Uniform Interstate Family Support Act (UIFSA), codified at Ark. Code Ann. §§ 9-17-101 to -905 (Repl. 2002). As the present appeal is before us on a petition for review from an unpublished opinion of the court of appeals, Office of Child Support Enforcement v. Wood, No. CA 07-125 (Ark. App. Oct. 10, 2007), our jurisdiction is pursuant to Ark. Sup. Ct. R. 2-4. We find no error and affirm.
Appellee Clarence L. Wood, Jr., was married to Ora G. Wood, and two children were born of the marriage. The Woods divorced, pursuant to a decree entered in Kansas in 2002. The divorce decree stipulated that the parties would have joint custody of the minor children, but Wood was required to pay $401 per month in child support. Following their divorce, Clarence moved to Arkansas, and Ora moved to Oklahoma. Once in Oklahoma, Ora opened a child-support case with that state and, as a result, Oklahoma contacted the Jefferson County OCSE, requesting that the Kansas divorce decree be registered, modified, and enforced. OCSE subsequently filed a petition to register the child-support order, pursuant to UIFSA, on October 12, 2005.
On April 26, 2006, Clarence filed a petition seeking to abate child support during his period of extended visitation with the children. OCSE responded and filed a counterclaim to register the foreign order and modify the amount of child support. Following a brief hearing, the trial court ruled from the bench that it would register the Kansas order, but that it had no jurisdiction to modify the award of child support. A written order was subsequently entered on December 4, 2006. OCSE timely appealed the trial court’s order to the Arkansas Court of Appeals. The court of appeals affirmed the trial court’s order after determining there were no specific findings made to allow the Arkansas court to modify the Kansas order, and further noting that while the Arkansas court was authorized to modify a support award, it was not mandated to do so. OCSE then petitioned this court for review, which we granted.
When we grant a petition for review, we treat the appeal as if it were filed in this court originally. Cedar Chem. Co. v. Knight, 372 Ark. 233, 273 S.W.3d 473 (2008). Moreover, we review a trial court’s ruling declining to exercise jurisdiction under an abuse-of-discretion standard. See Uttley v. Bobo, 97 Ark. App. 15, 242 S.W.3d 638 (2006) (holding that a trial court’s decision on whether to exercise jurisdiction in a proceeding under the Uniform Child Custody and Jurisdiction Enforcement Act is reviewed for an abuse of discretion).
On appeal, OCSE argues that the trial court erred in declining to exercise jurisdiction over its petition seeking to increase the amount of support to be paid by Clarence. According to OCSE, the trial court improperly considered collateral issues, such as the fact that the Woods had signed a joint property-settlement agreement in Kansas, that were not pertinent to its petition. OCSE also seems to suggest that the trial court improperly declined to exercise jurisdiction once it realized that it could not consider Clarence’s request to abate child support during the extended period of summer visitation.
Clarence counters that it was appropriate for the trial court to decline to exercise jurisdiction over the modification request because the trial court’s order failed to include any findings of fact or conclusions of law regarding whether the requirements of section 9-17-611 were met. Additionally, Clarence avers that the trial court acted properly, as the statute governing modification includes the words “may modify,” meaning the trial court is authorized, but not required, to modify such an order. Finally, Clarence asserts that it was proper for the trial court to decline to exercise jurisdiction where the Kansas divorce decree, which provided for joint custody, was not registered in Arkansas.
In 1993, the General Assembly enacted Act 468 of 1993, repealing the Revised Uniform Reciprocal Enforcement of Support Act (RURESA) and adopting UIFSA in its place. Arkansas Code Annotated section 9-17-603(c) provides that a tribunal of this state may only modify a registered order pursuant to the provisions of article 6 if the issuing tribunal had jurisdiction. The following are limitations upon the modification of child-support orders issued in other states:
(a) After a child-support order issued in another state has been registered in this state, the responding tribunal of this state may modify that order only if § 9-17-613 does not apply and after notice and hearing it finds that:
(1) the following requirements are met:
(i) the child, the individual obligee, and the obligor do not reside in the issuing state;
(ii) a petitioner who is a nonresident of this state seeks modification; and
(iii) the respondent is subject to the personal jurisdiction of the tribunal of this state; or
(2) the child, or a party who is an individual, is subject to the personal jurisdiction of the tribunal of this state and all of the parties who are individuals have filed written consents in the issuing tribunal for a tribunal of this state to modify the support order and assume continuing, exclusive jurisdiction over the order____
(b) Modification of a registered child-support order is subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by a tribunal of this state and the order may be enforced and satisfied in the same manner.
Ark. Code Ann. § 9-17-611(a), (b) (Repl. 2002). Unless these statutory requirements are met with respect to the limitations placed upon the modification of foreign child-support orders, such orders cannot be modified. See Office of Child Support Enforcem’t v. Cook, 60 Ark. App. 193, 959 S.W.2d 763 (1998).
Here, the trial court ruled that it had jurisdiction to enforce the foreign child-support order and, thus, ordered that the foreign judgment be registered. However, the trial court then declined to exercise jurisdiction over the petition for modification “due to the joint custody provision of the foreign order.” The trial court reasoned that, pursuant to Administrative Order No. 10, it was required to consider shared or joint custody arrangements when considering any deviation from the family support chart in considering the modification of child support. Because it was not allowed to address the issue of visitation or custody in the context of a UIFSA proceeding, the trial court concluded that it therefore could not consider the request for an increased award of child support. Thus, the issue presently before us is whether the trial court properly declined to exercise jurisdiction over OCSE’s petition for an increased award of support.
We review issues of statutory construction under a de novo standard. See Cooper Clinic, P.A. v. Barnes, 366 Ark. 533, 237 S.W.3d 87 (2006). Because it is for this court to decide the meaning of a statute, we are not bound by the circuit court’s determination of the statute’s meaning. Hardy v. Wilbourne, 370 Ark. 359, 259 S.W.3d 405 (2007). The basic rule of statutory construction is to give effect to the intent of the General Assembly. Id. The first rule in determining the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. This court will construe a statute so that no word is left void, superfluous or insignificant, with meaning and effect given to every word in the statute if possible. Id. When the language of the statute is plain and unambiguous, conveying a clear and definite meaning, we need not resort to the rules of statutory construction. Id. A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. Id.
Based on a plain reading of the provisions of UIFSA, we cannot say that the trial court abused its discretion in declining to exercise jurisdiction over OCSE’s petition. Section 9-17-611(a) clearly states that a trial court may modify an award of support upon certain conditions being satisfied. This court has often recognized that the word “may” is usually employed as implying permissive or discretionary, rather than mandatory, action or conduct and is construed in a permissive sense unless necessary to give effect to an intent to which it is used. Gonzales v. City of DeWitt, 357 Ark. 10, 159 S.W.3d 298 (2004); Cortinez v. Arkansas Supreme Court Comm. on Prof' l Conduct, 353 Ark. 104, 111 S.W.3d 369 (2003); Marcum v. Wengert, 344 Ark. 153, 40 S.W.3d 230 (2001). Accordingly, the trial court was not required to exercise its jurisdiction over OCSE’s petition, and we affirm its order, although for a different reason. See Thomas v. Avant, 370 Ark. 377, 260 S.W.3d 266 (2007) (holding that it is axiomatic that this court can affirm a circuit court if the right result is reached even if for a different reason). Circuit court affirmed; Court of Appeals affirmed. | [
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Paul E. Danielson, Justice.
Appellant Ralph Armstrong appeals from the circuit court’s denial of his petition pursuant to Ark. R. Crim. P. 37. His sole point on appeal is that pursuant to a recent opinion of the United States Supreme Court, he should be granted a new trial at which evidence of third-party guilt should be admitted. We hold that the circuit court did not clearly err and affirm the circuit court’s order.
Armstrong was found guilty of two counts of capital murder and was sentenced to two concurrent terms of life imprisonment without parole. This court affirmed the judgment in Armstrong v. State, 366 Ark. 105, 233 S.W.3d 627 (2006). In that appeal, Armstrong argued that the circuit court erroneously excluded evidence he requested to present of controversies between Kim Waller, Waller’s sisters, and Dashunda Armstrong, the victim, including an audio tape that contained statements by the Waller sisters threatening to kill Dashunda Armstrong. See id. He claimed that the circuit court erroneously construed Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993), as requiring evidence of another’s guilt to point directly to the other perpetrator’s guilt before it could be presented. See id. We held that the circuit court did not err in its interpretation of Zinger and that the circuit court did not abuse its discretion in rejecting the evidence, as it did no more than create a suspicion or conjecture that the Waller sisters may have played a role in Dashunda Armstrong’s death. See id.
On July 3, 2006, Armstrong filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1, alleging that a United States Supreme Court opinion, Holmes v. South Carolina, 547 U.S. 319 (2006), issued one day before the mandate in this case was issued, overruled Zinger v. State, supra. Therefore, Armstrong alleged he should be granted a new trial at which the evidence that allegedly would have incriminated Kim Waller and her sisters be admitted.
On October 17, 2006, the circuit court held a Rule 37 hearing on Armstrong’s motion. The circuit court denied Armstrong’s petition on July 17, 2006, finding the following:
A claim for relief under Rule 37 is not applicable if the claim on which it is based could have been raised at trial or on appeal, unless it presents a question so fundamental as to render the judgment of conviction absolutely void. This issue was adequately presented to this Court both before trial and prior to the case being presented to the jury. Further, the recent United States Supreme Court decision upon which the Petitioner relies did not explicitly overrule the law upon which this Court made its rulings and is otherwise distinguishable. Defendant’s petition for relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure is therefore denied.
This appeal arises from the order denying Armstrong’s petition for postconviction relief. We now turn to the current appeal.
Under our 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).
Armstrong contends that, under Holmes v. South Carolina, supra, Zinger v. State, supra, is unconstitutional because it abridges defendants’ rights to present a complete defense, confront and cross examine witnesses, have a jury determine all facts necessary to convict, and the right to have the government prove its case beyond a reasonable doubt. First, the State avers that Armstrong is too late in making his claim because he never filed a petition for certiorari, and a Rule 37 petition is not the proper forum for him to request that Holmes be retroactively applied to his case. Furthermore, the State argues that even if Armstrong could raise Holmes now, he is not entitled to relief because Zinger was not overruled, either explicitly or implicitly, as the rule applied in Zinger is distinguishable from the rule at issue in Holmes.
A. The Appropriateness of Armstrong’s Rule 3 7 petition
The State contends that objections to evidentiary rulings at trial are not cognizable under Rule 37. Further, the State argues that Armstrong may not pursue this claim simply because Holmes was issued during the time that he could have sought certiorari and that he should have petitioned the United States Supreme Court to have his conviction vacated based on Holmes. However, the State fails to cite supporting authority for the proposition that a petition for certiorari to the United States Supreme Court would have been the proper method for Armstrong to pursue this claim.
Rule 37.1 of the Arkansas Rules of Criminal Procedure instructs:
(a) A petitioner in custody under sentence of a circuit court claiming a right to be released, or to have a new trial, or to have the original sentence modified on the ground:
(i) that the sentence was imposed in violation of the Constitution and laws of the United States or this state[.]
Ark. R. Crim. P. 37.1(a) (2007). Here, Armstrong petitions for a new trial based on his belief that the United States Supreme Court’s holding in Holmes proves that the circuit court erred in applying Zinger to his case, which he alleges violated his rights under the Due Process Clause of the Fourteenth Amendment and the Compulsory Process and Confrontation Clauses of the Sixth Amendment. Therefore, a Rule 37 petition was appropriate. In addition, requiring a petitioner to petition the United States Supreme Court for a writ of certiorari instead of bringing a Rule 37 petition does not further judicial economy.
If Armstrong’s allegations are correct, the United States Supreme Court has held that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.” Griffith v. Kentucky, 479 U.S. 314, 328 (1987). The Court clarified that by “final,” it meant “a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.” Id. at 321. When Holmes was issued, this court had not issued the mandate in Armstrong’s case, and the time to file for a petition for certiorari had not lapsed.
B. The Merits of Armstrong’s Rule 37 Petition
We now turn to the merits of Armstrong’s Rule 37 petition and must decide whether the United States Supreme Court’s decision in Holmes v. South Carolina, 547 U.S. 319 (2006), overrules Arkansas precedent, in particular, Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993). We conclude it does not.
The Holmes Court stated that certain rules regarding the admission of evidence proffered by a criminal defendant to show' that someone else committed the crime with which they were charged are widely accepted and were not the rules being challenged in that case. See Holmes, supra. For example, the Court noted that “[e]vidence tending to show the commission by another person of the crime charged may be introduced by the accused when it is inconsistent with, and raises a reasonable doubt of, his own guilt; but frequently matters offered in evidence for this purpose are so remote and lack such connection with the crime that they are excluded.” Id. at 327 (citing 41 C.J.S. Homicide § 216 (1991)). Additionally, the Court further stated that “[t]he accused may introduce any legal evidence tending to prove that another person may have committed the crime with which the defendant is charged . . . [Such evidence] may be excluded where it does not sufficiently connect the other person to the crime, as, for example, where the evidence is speculative or remote, or does not tend to prove or disprove a material fact in issue at the defendant’s trial.” Id. at 327 (citing 40A Am. Jur. 2d Homicide § 286 (1999)).
The Holmes Court also accepted a rule established in an earlier South Carolina Supreme Court case, State v. Gregory, 198 S.C. 98, 16 S.E.2d 532 (1941):
In Gregory, the South Carolina Supreme Court adopted and applied a rule apparently intended to be of this type, given the court’s references to the “applicable rule” from Corpus Juris and American Jurisprudence:
“[E]vidence offered by accused as to the commission of the crime by another person must be limited to such facts as are inconsistent with his own guilt, and to such facts as raise a reasonable inference or presumption as to his own innocence; evidence which can have (no) other effect than to cast a bare suspicion upon another, or to raise a conjectural inference as to the commission of the crime by another, is not admissible. .... [B]efore such testimony can be received, there must be such proof of connection with it, such a train of facts or circumstances, as tends clearly to point out such other person as the guilty party.”
547 U.S. at 328 (internal citations omitted). It is not the above rule from South Carolina with which the United States Supreme Court was concerned. However, the rule on review in Holmes had been altered and extended by the South Carolina Supreme Court when applied in State v. Holmes, 361 S.C. 333, 605 S.E.2d 19 (2004), and State v. Gay, 343 S.C. 543, 541 S.E.2d 541 (2001).
In Gay, the South Carolina Supreme Court held that “[i]n view of the strong evidence of appellant’s guilt-especially the forensic evidence . . . the proffered evidence . . . did not raise ‘a reasonable inference’ as to appellant’s own innocence.” 343 S.C. at 550, 541 S.E.2d at 545. Again in State v. Holmes, the South Carolina Supreme Court extended the rule and held that “where there is strong evidence of an appellant’s guilt, especially where there is strong forensic evidence, the proffered evidence about a third party’s alleged guilt does not raise a reasonable inference as to the appellant’s own innocence.” 361 S.C. at 343, 605 S.E.2d at 24.
The Court in Holmes found that the rule as applied by the South Carolina Supreme Court in State v. Gay, supra, and State v. Holmes, supra, “does not rationally serve the end that the Gregory rule and its analogues in other jurisdictions were designed to promote, i.e., to focus the trial on the central issues by excluding evidence that only has a very weak logical connection to the central issues.” 547 U.S. at 329. The Court further commented the problem with the rule as it was applied in State v. Gay, supra, and State v. Holmes, supra, was that:
Under this rule, the trial judge does not focus on the probative value or the potential adverse effects of admitting the defense evidence of third-party guilt. Instead, the critical inquiry concerns the strength of the prosecution’s case: If the prosecution’s case is strong enough, the evidence of third-party guilt is excluded even if that evidence, if viewed independently, would have great probative value and even if it would not pose an undue risk of harassment, prejudice, or confusion of the issues.
Id.
The issue this court must now decide is if the rule we applied in Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993), and Armstrong v. State, 366 Ark. 105, 233 S.W.3d 627 (2006), serves the same end as the rule in Gregory and its analogues in other jurisdictions, or focuses on the strength of the prosecution’s case as the rule applied in State v. Gay, supra, and State v. Holmes, supra.
We quoted the Supreme Court of North Carolina with favor in both Zinger and Armstrong stating:
A defendant may introduce evidence tending to show that someone other than the defendant committed the crime charged, but, such evidence is inadmissible unless it points direcdy to the guilt of the third party. Evidence which does no more than create an inference or conjecture as to another’s guilt is inadmissible.
Armstrong v. State, 366 Ark. at 117, 233 S.W.3d at 637; Zinger v. State, 313 Ark. at 75, 852 S.W.2d at 323 (quoting State v. Wilson, 322 N.C. 117, 367 S.E.2d 589 (1988)). In addition, quoting the Supreme Court of California, we observed:
[T]he rule does not require that any evidence, however remote, must be admitted to show a third party’s possible culpability . . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.
Armstrong v. State, 366 Ark. at 117, 233 S.W.3d at 637; Zinger v. State, 313 Ark. at 75, 852 S.W.2d at 323 (quoting People v. Kaurish, 52 Cal. 3d 648, 276 Cal. Rptr. 788, 802 P.2d 278 (1990)).
We hold that the rule this court applied in both Zinger and Armstrong is not arbitrary and does not evaluate the strength of only one party’s evidence as the rule overturned in Holmes v. South Carolina, supra. The rule we have applied simply requires that the evidence a defendant wishes to admit to prove third-party guilt sufficiently connects the other person to the crime. In Armstrong v. State, supra, we considered the evidence Armstrong alleged should have been admitted at his trial and concluded that it did “no more than create a suspicion or conjecture that the Waller sisters may have played a role in Dashunda Armstrong’s death.” 366 Ark. at 118, 233 S.W.3d at 637.
For these reasons, we hold that the circuit court did not clearly err in denying Armstrong’s Rule 37 petition and affirm.
Affirmed.
While Armstrong had filed a similar pro se petition on June 28,2006, the circuit court granted a motion to substitute it with the Rule 37 petition subsequently filed by his counsel on July 3,2006, with no objection by the State. | [
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Jim Gunter, Justice.
This appeal arises from an order of the Pope County Circuit Court ruling that Appellant Scott Dale King (“King”) did not qualify as an individual who may adopt minor child J.M.K. (“the child”) under Ark. Code Ann. § 9-9-204 (Repl. 2002). We reverse and remand for consideration of the adoption petition on the merits.
King is thirty-six years old and unmarried. He is the biological father of the child. The child has been in King’s care and custody since December of 2005, when custody was awarded to him by the circuit court. King filed a petition for adoption on October 19, 2007, asserting that it was his desire to establish the relationship of father and child and to terminate the parental rights of the child’s mother, Misti Dawn Ochoa. Ochoa submitted her consent to King’s adoption of the child on November 20, 2007. At a hearing on November 29, 2007, the circuit court entered an order dismissing the petition for adoption with prejudice. The circuit court ruled that King was not eligible to adopt the child because Ark. Code Ann. § 9-9-204(3) does not permit an unmarried natural father to adopt his own child. King filed a timely notice of appeal on December 31, 2007.
For his sole point on appeal, King asserts that, pursuant to Ark. Code Ann. § 9-9-204, an unmarried father who has the consent of the biological mother may adopt his own child. Specifically, he contends that he meets the statutory requirements of § 9-9-204 and is therefore eligible to adopt the child. He also asserts that the circuit court erred in finding that it would be against public policy to interpret the statute to allow the adoption of a child by a biological parent because there is nothing unclear or ambiguous in the language of the statute.
We review issues of statutory interpretation de novo. Hanners v. Giant Oil Co. of Ark., Inc., 373 Ark. 418, 284 S.W.3d 468 (2008). We are not bound by the circuit court’s decision; however, in the absence of a showing that the circuit court erred, its interpretation will be accepted as correct on appeal. Id. When reviewing issues of statutory interpretation, we keep in mind that the first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Id. A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. Id. When a statute is clear, however, it is given its plain meaning, and this court will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. Id. Additionally, we have consistently held that statutory provisions involving the adoption of minors are strictly construed and applied. See In re Adoption of Tompkins, 341 Ark. 949, 20 S.W.3d 385 (2000); Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994); Swaffar v. Swaffar, 309 Ark. 73, 827 S.W.2d 140 (1992); In re Adoption of Parsons, 302 Ark. 427, 791 S.W.2d 691 (1990).
Parental rights and the integrity of the family unit have always been a concern of this state and their protection regarded as a proper function of the courts. See Parsons, supra. The conditions upon which parental rights are to be terminated are a question of policy, the resolution of which is addressed in a democracy to the policy-making branch of government, the General Assembly, and it is not for the courts to make a statute say something that it clearly does not. Id. (citing Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979)).
Arkansas Code Annotated § 9-9-204(3) states that ‘ ‘ [t] he unmarried father or mother of the individual to be adopted” may adopt. Id. Construing the statute just as it reads, it clearly allows for an unmarried father to adopt his own child, and therefore, is unambiguous. Because it is plain and unambiguous, there is no need to resort to rules of statutory construction. See Hanners, supra. Therefore, because we strictly construe adoption statutes, see Tompkins, supra, we hold that the circuit court erred in its ruling that King was ineligible to adopt the child under § 9-9-204.
The circuit court also denied King’s petition based on the reasoning that granting the petition would terminate the financial responsibility of Ochoa, stating:
Her consent does not change my mind about this. This is evidently a parent that by virtue of the consent does not want anything to do with the child. And, while that is an unfortunate set of circumstances, she still has the financial responsibility to look to and provide for that child. The state and the custodial parent have the obligation to pursue that, unless they are able to take care of the child financially themselves. In the event that the custodial parent were to pass away, if I were to grant this adoption, there would be no one else out there except you and I and the state to take care of this child.
We hold that this policy concern of the circuit court is a question that should be addressed by the legislature. As stated above, the statute clearly states that King is eligible to adopt the child, and we should not interpret the statute to say something that it clearly does not. See Parsons, supra. In this case, we are merely holding that the circuit court erred in its interpretation of § 9-9-204. Under § 9-9-204, an unmarried mother or father may adopt; however, § 9-9-204 only sets out who may adopt. All other requirements under the Uniform Adoption Act must still be met. Accordingly, we reverse the ruling of the circuit court and remand for consideration of the adoption petition on the merits.
Reversed and remanded.
No appellee’s brief was filed in this case. | [
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Per Curiam.
Appellants, Winrock Grass Farm, Inc.; FBW, LC; and Frank B. Whitbeck; by and through their attorney, James H. Penick, III, have filed a motion for rule on clerk. The record reflects that appellants timely filed their notice of appeal on December 10, 2007, making the record on appeal due on or before March 9, 2008. On January 22, 2008, appellants filed a motion for extension of time to file the record. One day later, on January 23, 2008, the circuit court entered an order extending the time for filing the record to seven months from November 21, 2007, the date of the judgment. Appellants state that when they attempted to tender the record to this court’s clerk on April 30, 2008, the clerk declined to docket the record due to lack of compliance with Rule 5(b)(1)(C) of the Arkansas Rules of Appellate Procedure-Civil.
Arkansas Rule of Appellate Procedure — Civil 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.
Ark. R. App. P.-Civ. 5(b)(1) (2007). 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). We have further held that we expect strict compliance with the requirements of Rule 5(b) and that we do not view the granting of an extension as a mere formality. See id. Where an order fails to comply with Rule 5(b), we may remand the matter to the circuit court for compliance with the rule. See, e.g., Kelly v. Ford, 373 Ark. 111, 281 S.W.3d 744 (2008) (per curiam).
Upon a remand for compliance with Rule 5(b)(1), the circuit court shall determine whether the rule was complied with at the time the original motion for extension of time was filed and granted. See id. (citing McGahey v. State, 372 Ark. 46, 269 S.W.3d 814 (2007) (per curiam)). 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. See 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. See id.
Because the order of extension in this case makes no reference to each of the findings of the circuit court required by the rule and because there must be strict compliance with the rule, we remand the matter to the circuit court for compliance with Rule 5(b)(1).
Remanded.
Brown, J., not participating. | [
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Per Curiam.
Appellants Michael and Lindsey Spurlock, by and through their attorney, Timothy W. Murdoch, bring this motion for reconsideration. On February 20, 2008, Appellants filed a motion for rule on clerk requesting that we direct our supreme court clerk to accept their record on appeal for filing. As an alternative, they requested we remand their appeal to the circuit court for entry of an order in compliance with Ark. R. App. P.-Civ. 5(b)(1). On March 13, 2008, we denied this motion because of Appellants’ failure to strictly comply with Rule 5(b)(1). See Spurlock v. Riddell, 373 Ark. 38, 280 S.W.3d 18 (2008) (per curiam).
In the motion for reconsideration, Appellants aver that they were unaware that the extension order granted by the circuit court did not comply with Rule 5 until the deadline for filing a motion for extension had expired. They request that we remand their case to the circuit court for determination of whether they should have filed a motion for extension. Alternatively, Appellants request reconsideration of our application of Rule 5(b)(1) to their situation because neither party objected to the extension order.
The responsibility for perfecting an appeal rests solely with a petitioner, not the circuit clerk, circuit court, or any other person. See Sullivan v. State, 301 Ark. 352, 784 S.W.2d 155 (1990) (per
curiam). 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 Byrer v. Colvard, 372 Ark. 460, 277 S.W.3d 209 (2008) (per curiam); Harrison v. State, 369 Ark. 518, 256 S.W.3d 482 (2007) (per curiam). Where a case is remanded for compliance with Rule 5(b)(1), the circuit court is to determine whether the rule was complied with at the time the original motion for extension of time was filed and granted. See Byrer, 372 Ark. 460, 277 S.W.3d 209.
Here, it is clear from the record that Appellants failed to comply with Rule 5(b)(1) by failing to file a motion requesting an extension of time for filing the record on appeal. As such, remand would be futile. Appellants were responsible for ensuring the appeal was properly perfected. The fact that neither party objected to an extension does not excuse Appellants’ failure to comply with our rules. Accordingly, Appellants have failed to meet their burden of demonstrating that there was some error of fact or law that would merit reconsideration of the denial of the motion for rule on clerk.
Motion denied. | [
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Jim Hannah, Chief Justice.
The State of Arkansas brings an interlocutory appeal under Ark. R. Crim. P. 3 seeking review of a decision of the Pulaski County Circuit Court, Juvenile Division, suppressing S.G.’s custodial statement. We hold that the appeal fails to comply with Rule 3. The State’s interlocutory appeal is dismissed. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2 (b)(1).
At a hearing to determine whether S.G.’s alleged misconduct should be handled under Extended Juvenile Jurisdiction, the State attempted to introduce S.G.’s custodial statement. S.G. objected, asserting that the statement was taken in violation of Ark. Code Ann. § 9-27-317 (Repl. 2002). More specifically, S.G. asserted that his waiver of his right to counsel was not valid because a person holding legal custody was not present as required by section 9-27-317. The circuit court suppressed the statement.
Facts
When S.G. was two, his aunt was granted custody and guardianship of S.G. by a circuit court in Tennessee. He then lived with his aunt in Tennessee. Three months prior to the incident for which S.G. was arrested and questioned in the present case, he moved from Tennessee to Little Rock and lived with his grandmother. At all times relevant to this case, S.G.’s aunt held legal guardianship and legal custody of S.G. under the Tennessee circuit court order. His grandmother had filed a petition seeking custody as of the time of the hearing at issue; however, no evidence was offered to show that any action had been taken on that petition. S.G. was arrested in the presence of his grandmother and taken to the police station. His grandmother accompanied him there and was present when S.G. was questioned.
Ark. Code Ann. § 9-27-317
On appeal, the State argues that the circuit court erred in interpreting section 9-27-317(h)(2)(A) (Repl. 2002). This section provides, “When a custodial parent, guardian, or custodian cannot be located or is located and refuses to go to the place where the juvenile is being held, counsel shall be appointed for the juvenile.” The State asserts that the circuit court found that this language sets a “priority list” and ruled that “the police could not skip the guardian aunt to rely on the custodian grandmother’s presence.” We disagree that the circuit court made this finding and ruling. The record reveals that the circuit court ruled that section 9-27-317(h)(2)(A) requires police to seek out a person who holds legal custody of the juvenile whether that person is a parent, a guardian, or a custodian.
The discussion in the circuit court and on this appeal centers on whether the facts showed that S.G.’s grandmother was a “custodian.” The State argues that “the circuit court erred by concluding that Appellee’s statement had to be excluded because his guardian aunt was not present, although his custodian grandmother was.” The discussion in the hearing below concerned, among other things, the time that S.G. lived with his grandmother, how long he had lived with his grandmother, that she had filed a petition to assume guardianship, that S.G. had moved to Little Rock to live with his grandmother, that he was in her physical custody, as well as facts concerning the aunt’s and the grandmother’s relationship to S.G. The State argues about whether S.G’s grandmother was a “custodian,” which is a question of fact not subject to appeal by the State under Rule 3.
An interlocutory appeal under Rule 3 must concern the interpretation of the law, and it must involve the correct and uniform administration of justice. State v. Brooks, 360 Ark. 499, 202 S.W.3d 508 (2005). The correct and uniform administration ofjustice is at issue when the question presented is solely a question of law independent of the facts in the case appealed. See, e.g., State v. Hart, 329 Ark. 582, 952 S.W.2d 138 (1997). Where the appeal relies on facts unique to the case, the appeal will not lie. Hart, supra. The circuit court’s decision in the present case required it to review unique circumstances and decide mixed questions of law and fact; therefore, we must conclude that the correct and uniform administration ofjustice is not at issue. Accordingly, we dismiss the appeal. See Hart, 329 Ark. at 585, 952 S.W.2d at 139. Appeal dismissed.
Corbin, J., not participating.
See Ark. Code Ann. §§ 9-27-501 to -510 (Repl. 2002).
The term “custodian” is defined in Ark. Code Ann. § 9-27-303(14) (Repl. 2002). | [
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Per Curiam.
Appellant, William Dale Morrison, by and through his attorney, Thurman Ragar, Jr., has filed a motion for rule on clerk. The clerk of the supreme court and court of appeals refused to docket this appeal or accept the record due to a failure to comply with Arkansas Rule of Appellate Procedure-Civil 5(b)(1)(C).
In McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004), this court clarified our treatment of motions for belated appeals and motions for rule on clerk. We explained:
Where an appeal is not timely perfected, either the party or attorney fifing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney fifing the appeal is therefore faced with two options. First, where the party or attorney fifing 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 there is good reason the appeal was not perfected, then the case for good reason can be made in the motion, and this court will decide if good reason is present.
Id., 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 has erred and is responsible for the failure to perfect the appeal. See id.
In accordance with McDonald v. State, supra, Mr. Ragar has candidly admitted that it was his responsibility to assure compliance with Rule 5(b)(1)(C) and that this was not done. The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Motion granted. | [
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Jim Hannah, Chief Justice.
The Estate of Richard L. Preston and Gloria Preston (Preston) appeal the dismissal of their complaint with prejudice. Preston asserted a cause of action against their former attorneys Fred E. Stoops, Sr.; Richard D. Marks; and Stoops, Richardson & Ward, P.C. (Stoops) under the Arkansas Deceptive Trade Practices Act (ADTPA) and based on a breach of the covenant of good faith and fair dealing. Preston alleges that the circuit court erred in ruling that the ADTPA does not apply to solicitation of clients by attorneys and in ruling that there is no cause of action for the breach of the covenant of good faith and fair dealing. Preston also asserts that the circuit court erred in ruling in favor of Stoops because it did not decide the issue of whether there was a contract and whether that contract was breached. We affirm the circuit court on all issues raised on appeal. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b)(l).
On November 19, 1999, Richard L. Preston fell and broke his left femur. Stoops offered to represent Preston in a medical malpractice law suit related to medical care rendered for the broken femur. Preston agreed. Stoops filed an action in the Pulaski County Circuit Court. It was dismissed with prejudice by the circuit court because Stoops was not authorized to practice law in Arkansas. The dismissal with prejudice was affirmed by this court. See Preston v. Univ. of Ark. for Med. Sciences, 354 Ark. 666, 128 S.W.3d 430 (2003).
On March 15, 2006, Preston filed a complaint against Stoops under the ADTPA. Stoops filed a motion for summary judgment, arguing that the ADTPA does not apply to the practice of law. Before the motion for summary judgment was heard, Preston filed a second amended complaint, adding a cause of action for a breach of the covenant of good faith and fair dealing. On June 13, 2007, the circuit court considered the motion for summary judgment on the application of the ADTPA. The circuit court found that the motion presented an issue of whether the complaint should be dismissed, rather than a question of whether a genuine issue of material fact remained, and treated the motion as a motion to dismiss. The circuit court found that the ADTPA did not apply to the practice of law. On July 18, 2007, the circuit court considered the new cause of action for breach of the covenant of good faith and fair dealing and found that there was no such cause of action in Arkansas. Plaintiffs Second Amended complaint was dismissed with prejudice.
As already noted, while Stoops presented its motion in the form of a motion for summary judgment, Stoops asserted that there was no cause of action and sought dismissal. The motion was treated as a motion to dismiss. We review a decision on a motion to dismiss by treating the facts alleged as true and by viewing them in a light most favorable to the plaintiff. Bright v. Zega, 358 Ark. 82, 186 S.W.3d 201 (2004). Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id. As to issues of law presented, our review is de novo. See R.K. Enters., LLC v. Pro-Comp Mgmt., Inc., 372 Ark. 199, 272 S.W.3d 85 (2008).
We first consider Preston’s claim that the circuit court erred in failing to rule on whether there was a contract and whether that contract was breached. As Preston notes, the circuit court did not decide these issues. “Our jurisdiction on appeal is limited to review of an order or decree of a lower court.” Bobo v. Jones, 364 Ark. 564, 571, 222 S.W.3d 197, 203 (2006) (citing Gwin v. Daniels, 357 Ark. 623, 184 S.W.3d 28 (2004)). Because there is no ruling on the issues of the existence of a contract or breach of a contract, these issues are not subject to appellate review. Id.
We next consider Preston’s argument that the circuit court erred in ruling that the ADTPA does not apply to the practice of law. Preston alleges that Stoops “enticed and induced” them into accepting representation. Preston alleges further that Stoops knew at the time that they prejudiced their clients and that they were not authorized to practice law in Arkansas, but lied about it. Stoops is further accused of engaging in nefarious conduct throughout their representation, including lying to the Prestons and representing that the lawsuit could be and had been refiled. Preston alleges that this conduct, and especially client solicitation, falls within the conduct regulated by the ADTPA. We disagree.
Stoops undertook legal representation of the Prestons when Stoops was not authorized to practice law in Arkansas. Thus, the unauthorized practice of law is at issue. The unauthorized practice of law falls within this court’s constitutional authority to control and govern the practice of law. See, e.g., Am. Abstract & Title Co. v. Rice, 358 Ark. 1, 186 S.W.3d 705 (2004). The suggestion that the practice of law can be regulated by an act of the General Assembly is without merit. Oversight and control of the practice of law is under the exclusive authority of the judiciary. Under Ark. Const. amend. 28, “The Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys at law.” That responsibility could not be discharged if it were dependent upon or controlled by statutes enacted by the General Assembly. See In re Supreme Court License Fees, 251 Ark. 800, 483 S.W.2d 174 (1972). Further, any action by the General Assembly to control the practice of law would be a violation of the separation-of-powers doctrine. See Ark. Const, art. 4, §§ 1 & 2. We affirm the circuit court’s finding that the ADTPA does not apply to the practice of law.
We finally consider Preston’s argument that Arkansas should recognize a cause of action in contract for a breach of the contractual duty of good faith and fair dealing. Preston argues that the circuit court relied on Country Corner Food & Drug, Inc. v. First State Bank, 332 Ark. 645, 966 S.W.2d 894 (1998), in error because this court in that decision only rejected the argument that there was no cause of action for breach of the covenant of good faith and fair dealing sounding in tort. Preston argues that the issue now is whether the cause of action may be stated in contract. The following discussion in Country Corner is relevant to our analysis:
The fact that every contract imposes an obligation to act in good faith does not create a cause of action for a violation of that obligation, and, as discussed above, this court has never recognized a cause of action for failure to act in good faith. Country Comer adduces no authority or argument for why this court should now recognize a new tort for failure to act in good faith or how such a recognition can be reconciled with our previous case law which only recognizes the tort of bad faith against insurance companies. Without a cogent reason supported by convincing authority for taking this step, we decline to recognize this new tort in Arkansas.
Country Corner, 332 Ark. 655-56, 966 S.W.2d at 899. In Country Corner, we stated that this court has never recognized a cause of action for failure to act in good faith. Preston is correct that this rejection of the cause of action for breach of the covenant of good faith and fair dealing in Country Corner concerned a cause of action pled in tort. However, we need not reach Preston’s issue of whether a cause of action could be stated in contract because Preston has pled the action in tort.
In the Second Amended Complaint, Preston alleges damages suffered as a proximate “result” of Stoops’s action and that Stoops engaged in fraud and misrepresentation. These allegations all sound in tort. See, e.g., Turner v. Stewart, 330 Ark. 134, 952 S.W.2d 156 (1997) (proximate cause); Bullock v. Barnes, 366 Ark. 444, 236 S.W.3d 498 (2006) (fraud and misrepresentation). As Preston acknowledges, this court has expressly stated that there is no cause of action in tort for breach of the covenant of good faith and fair dealing. Country Comer, supra. Thus, we do not reach the issue of whether a cause of action for breach of the covenant of good faith and fair dealing may be stated in contract.
Affirmed.
See Ark. Code Ann. § 4-88-101 (Supp. 2005).
Stoops, Richardson & Ward, P.C., is a law firm located in Tulsa, Oklahoma. It was determined in Preston v. University of Arkansas for Medical Sciences, 354 Ark. 666, 128 S.W.3d 430 (2003), that in their representation of the Prestons, no attorney in the firm was authorized to practice law in Arkansas either as an attorney licensed in Arkansas or by admission in Arkansas pro hac vice.
The dismissal was properly entered with prejudice because Stoops’s complaint was a nullity, and by the time it was dismissed, the statute of limitations on the medical malpractice had run, precluding the filing of a new complaint. See Preston v. Univ. of Ark. for Med. Sciences, 354 Ark. 666, 128 S.W.3d 430 (2003). | [
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Donald L. Corbin, Justice.
The present appeal is before us on a petition for review from a 4-2 decision of the Arkansas Court of Appeals reversing a decision by the Arkansas Workers’ Compensation Commission that Appellee Ronnie R. Conner suffered a compensable injury while employed by Appellant Texarkana School District. On appeal, the primary issue to be determined is whether there was substantial evidence to support the Commission’s determination that Conner was performing employment services at the time of his injury. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(e). We affirm the Commission and, thus, reverse the decision of the court of appeals.
The record reflects that at the time of his accident Conner had been employed as a janitor for the District for over twenty-six years. As part of his employment duties, Conner carried a walkietalkie and keys to all the locks on the school premises, but he was primarily responsible for emptying trash cans, cleaning floors and bathrooms, and cafeteria cleanup. While Conner was not required to remain on campus for his one-hour lunch break, if he did remain on campus, he was on call and was required to provide assistance if needed.
On September 21, 2004, Conner left the school premises during his lunch break to perform a personal errand. Upon his return, Conner went to park in his usual parking lot but discovered a disabled truck blocking the main entrance to the lot. Conner then went to the back entrance of the lot that is secured by a locked gate. While attempting to unlock the gate, Conner was struck by the gate and pinned under it. As a result, Conner’s leg was broken in two places. His injury left him unable to work for seven months.
Conner sought both temporary and permanent disability benefits from the District. The District asserted Conner was not entitled to benefits because he was not performing employment services at the time of his injury. A hearing before an Administrative Law Judge was held on May 24, 2005, to determine whether Conner had sustained a compensable injury. At that hearing, Conner testified about his job duties and that his supervisor issued him a set of keys that unlocked the building’s doors, as well as the gates to the parking lot. Conner also testified that he normally eats lunch in the school cafeteria, where he can eat for free, but that if cleanup is needed, he is required to stop his lunch break and immediately tend to the cleanup. Conner admitted that he is not required to remain on the school premises, nor is he paid for his one-hour lunch break. Finally, Conner admitted that it was not part of his specific job duties to open the parking-lot gates and that he had never opened them on any prior occasion.
Following the hearing, the ALJ entered an order dated August 18, 2005, finding that Conner had not sustained a compensable injury, as he was not performing employment services at the time of his injury. The ALJ relied on Conner’s testimony that he was returning to work after performing a personal errand, and in all of his years of employment he had never before been responsible for opening the gates at the back of the parking lot.
Conner appealed the ALJ’s decision to the full Commission, and the Commission reversed, finding that Conner had been injured while performing employment services. Specifically, the Commission found that Conner had proven that his injury occurred while he was advancing his employer’s interest, and stated:
Admittedly, prior to his injury, the claimant had been on a personal errand. However, when his injury happened he had returned to the respondent’s property and was attempting to open a gate to obtain access to the respondent’s parking lot. We believe the claimant was returning to work at this point and was providing a benefit to his employer in doing so.
We reach that conclusion because the claimant was on-call, and subject to being required to perform services for the respondent any time he was on their property. The claimant testified that he was carrying a walkie talkie which kept him in communication with his superior. He also testified that even on his lunch break, if there was something which arose that needed his attention, he was required to end his break and carry out his job duties.
In addition, the Commission found it significant that Conner was using the locked gate because the normal entrance to the parking lot was blocked by a disabled truck. This fact, according to the Commission, supported a conclusion that Conner was performing a service to the District by allowing access to the parking lot. In so concluding, the Commission relied on the court of appeals’ decision in Ray v. University of Arkansas, 66 Ark. App. 177, 990 S.W.2d 558 (1999) (holding that an employee who was injured while on a personal break was performing employment services at the time of her injury because she was required to end her break and assist students if needed).
The District appealed the Commission’s decision to the court of appeals, which reversed the Commission’s order, concluding that Conner was not providing employment services at the time of his injury. Texarkana Sch. Dist. v. Conner, 100 Ark. App. 100, 264 S.W.3d 579 (2007). Conner sought and was granted review in this court. Upon a petition for review, we consider a case as though it has been originally filed in this court. Cedar Chem. Co. v. Knight, 372 Ark. 233, 273 S.W.3d 473 (2008).
In appeals involving claims for workers’ compensation, this court views the evidence in a light most favorable to the Commission’s decision and affirms that decision if it is supported by substantial evidence. Id.; Wallace v. West Fraser South, Inc., 365 Ark. 68, 225 S.W.3d 361 (2006). Substantial evidence exists if reasonable minds could reach the Commission’s conclusion. Cedar Chem., 372 Ark. 233, 273 S.W.3d 473. The issue is not whether the appellate court might have reached a different result from the Commission, but rather whether reasonable minds could reach the result found by the Commission. Wallace, 365 Ark. 68, 225 S.W.3d 361. If so, the appellate court must affirm the Commission’s decision. Id.
The sole issue presented to us on appeal is whether Conner was performing employment services at the time of his injury. The District argues that the Commission’s decision that Conner was performing employment services at the time of his injury was not supported by substantial evidence. Specifically, the District avers that Conner was returning from a personal errand, was not required to remain on the school’s premises, could have parked in a different lot, and that it was not part of his job duties to unlock the gates. Conner counters that the decision of the Commission was supported by substantial evidence that he was performing an employment service at the time of his injury.
This court has repeatedly pointed out that Act 796 of 1993 significantly changed the workers’ compensation statutes and the way workers’ compensation claims are to be resolved. See Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002) (citing White v. Ga.-Pac. Corp., 339 Ark. 474, 6 S.W.3d 98 (1999)). Now, pursuant to Act 796, we are required to strictly construe the workers’ compensation statutes. See Ark. Code Ann. § 11-9-704(c)(3) (Repl. 2002).
Act 796 defines a compensable injury as “[a]n accidental injury . . . arising out of and in the course of employment.” Ark. Code Ann. § 11-9-102(4) (A) (i) (Supp. 2003). A compensable injury does not include an “[ijnjury which was inflicted upon the employee at a time when employment services were not being performed.” Ark. Code Ann. § 11-9-102(4)(B)(iii) (Supp. 2003). Act 796 fails, however, to define the phrase “in the course of employment” or the term “employment services.” Wallace, 365 Ark. 68, 225 S.W.3d 361; Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). Thus, it falls to this court to define these terms in a manner that neither broadens nor narrows the scope of Act 796. Pifer, 347 Ark. 851, 69 S.W.3d 1.
This court has held several times that an employee is performing “employment services” when he or she “is doing something that is generally required by his or her employer.” Wallace, 365 Ark. at 72, 225 S.W.3d at 365 (quoting Pifer, 347 Ark. at 857, 69 S.W.3d at 3-4); see also Collins v. Excel Specialty Prods., 347 Ark. 811, 69 S.W.3d 14 (2002); White, 339 Ark. 474, 6 S.W.3d 98. We use the same test to determine whether an employee was performing employment services as we do when determining whether an employee was acting within the course of employment. Wallace, 365 Ark. 68, 225 S.W.3d 361. Specifically, we have held that the test is whether the injury occurred “within the time and space boundaries of the employment, when the employee [was] carrying out the employer’s purpose or advancing the employer’s interest directly or indirectly.” Id. (quoting White, 339 Ark. at 478, 6 S.W.3d at 100). The critical inquiry is whether the interests of the employer were being directly or indirectly advanced by the employee at the time of the injury. Id. Moreover, the issue of whether an employee was performing employment services within the course of employment depends on the particular facts and circumstances of each case. Id.; see also Moncus v. Billingsley Logging & Am. Ins. Co., 366 Ark. 383, 235 S.W.3d 877 (2006).
It is clear that in a case such as the present one, where an injury occurs outside the time and space boundaries of the employment, the critical inquiry is whether the employer’s interests were being advanced, either directly or indirectly. Thus, the pertinent question in the present case is whether the District’s interests were advanced by Conner at the time he unlocked the gates and injured himself. The Commission determined that the District’s interests were advanced by this action, and we cannot say that there was a lack of substantial evidence to support this conclusion. Specifically, Conner testified that he was attempting to return to work but was only able to access his normal parking area by unlocking the gates at the back entrance. Conner stated that at the time of his injury he was headed to the cafeteria where he typically ate lunch, and any time he would eat in the cafeteria he considered himself to be on call because he was required to attend to his job duties immediately, even if they arose during his lunch break.
It is axiomatic that questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Cedar Chem., 372 Ark. 233, 273 S.W.3d 473. As such, we are foreclosed from determining the credibility and weight to be accorded to each witness’s testimony. Id.; Arbaugh v. AG Processing, Inc., 360 Ark. 491, 202 S.W.3d 519 (2005). Here, there was no testimony presented to contradict that of Conner’s that he was on call once he returned to the District’s premises, and the Commission found him to be a credible witness. Moreover, the evidence demonstrated that the main entrance to this particular lot was blocked. In attempting to unlock the gate and provide access to the back entrance, Conner was advancing his employer’s interests by allow ing other employees to enter or exit this parking lot, even if he was the only employee attempting to access the lot at the exact time of his accident. Accordingly, we must affirm the Commission’s decision as reasonable minds could have reached the same conclusion as that of the Commission.
Commission affirmed; court of appeals reversed. | [
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Tom Glaze, Justice.
Appellant Dennis Bailey is the owner of fourteen businesses, located across Arkansas, that are or were engaged in check-cashing and deferred-presentment transaction operations. Bailey applied for licenses for thirteen of those businesses in January 2005, but after discovering that other businesses he owned had previously been found to be in violation of state laws, the Arkansas State Board of Collection Agencies (“the Board”) declined to issue him a permit. In March 2005, Bailey applied to the State of Missouri to organize BMB Finance Company, LLC (“BMB”). Missouri issued BMB a license to operate, and Bailey then set up his Arkansas businesses, structuring the deferred-presentment transactions conducted at those businesses as “loans” from BMB, which loans were then “serviced” by the Arkansas businesses.
On March 10, 2005, the Board wrote to Bailey and instructed him to “cease all check cashing as he [did] not have a check-cashing license and [was] operating in violation of the law.” Over the next few months, the Board’s investigators went to each of Bailey’s stores and determined that he was still engaging in check-cashing and deferred-presentment transactions. In addition, the Board determined that BMB was not authorized to enter into loan transactions in Arkansas.
On June 28, 2006, the Board held a hearing on Bailey’s alleged violations and determined that he had violated the Arkansas Check-Casher’s Act, Ark. Code Ann. § 23-52-101 et seq. (Supp. 2005), by operating his check-cashing and deferred-presentment operations without licenses. The Board entered an administrative order that same day in which it voided all check-cashing and loan transactions into which the Bailey businesses had entered. It then fined Bailey and each of his businesses $1000 for each check-cashing violation transaction in 2006, totaling $562,000; fined Bailey and his businesses $250 for each deferred- presentment transaction in 2006, totaling $725,250; fined him $20,200 for the illegal operation of a Pine Bluff store in 2005; ordered him to cease all operations immediately; and ordered him to refund any fees that had been collected from anyone for the services of check cashing or providing a deferred-presentment transaction or loan. In addition, the Board ordered Bailey to pay the Board’s attorney’s fees in the amount of $10,000.
Bailey filed a petition for judicial review of the Board’s administrative order on July 10, 2006. After a hearing on March 2, 2007, the Pulaski County Circuit Court entered an order on April 13, 2007, affirming the decision of the Board. The court entered judgment in the Board’s favor on May 1, 2007, nunc pro tunc to April 13, 2007, ordering Bailey to pay $1,417,450 to the Board. Bailey filed a notice of appeal on May 30, 2007, and now raises one point for reversal, contending that the circuit court should have remanded the matter to the Board because the Board’s decision was not based on sworn testimony.
Bailey takes issue with the fact that the testimony of Peggy Matson, the Executive Director of the Board, “was replete with . . . hearsay[,] . . . was not under oath, [and] was not verified.” At the hearing before the Board, Bailey asked the Board to exclude any hearsay testimony, but the hearing officer declined to “make a blanket ruling prohibiting any paper that somebody . . . may offer into evidence on hearsay grounds.” The hearing officer noted that, since the Rules of Evidence did not apply to administrative proceedings, he did not “understand that hearsay objections, just in and of themselves, [would] be applicable like they would be in an ordinary court of law.” Bailey responded that, if the hearing officer was going to allow hearsay, he would “stipulate” to all of the exhibits and documentation, “subject to the [hearing officer’s] decision [on his hearsay objection].”
After Bailey’s stipulation to the exhibits, Matson informed the hearing officer that she had put together a summary of her investigation; her summary was offered as an exhibit, which was labeled S-2. Matson explained that the summary was a narrative of what her testimony would be if she had gone through all of the exhibits, previously entered as exhibit S — 1, page by page. After the reporter marked the exhibits and the hearing officer accepted them, Matson then went on to describe the investigation of Bailey and how it was determined that he was engaging in check-cashing and deferred-presentment transactions in each of his fourteen locations throughout Arkansas. At the conclusion of the hearing, Matson asked that Bailey be found to have violated the CheckCasher’s Act, fined, and ordered to cease all operations. The Board agreed, and, as noted above, an order to that effect was entered on June 28, 2006.
Bailey contends that the Board’s decision was improper because it was based on Matson’s written testimony, which he claims was nothing more than hearsay. In addition, he urges that Matson’s testimony was neither under oath nor verified. However, after the hearing officer rejected his hearsay objection, not only did Bailey stipulate to Matson’s documentary evidence, he also failed to object to the fact that her testimony was written and not under oath. This court has been resolute in requiring an objection to first be made at the administrative level, holding many times that it is an appellant’s obligation to raise such matters first to the administrative agency and obtain a ruling. See Franklin v. Ark. Dep’t of Human Servs., 319 Ark. 468, 892 S.W.2d 262 (1995) (declining to review appellant’s arguments that she was denied due process and her right to a hearing under Ark. Code Ann. § 25-15-208 where such arguments were not made to the administrative tribunal); Wright v. Ark. State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992) (declining to reach “several arguments” that were not raised before the Board); Alcoholic Bev. Control Div. v. Barnett, 285 Ark. 189, 685 S.W.2d 511 (1985) (declining to reach a challenge to the timing of two local-option elections because the argument was not raised before the Board).
The rationale behind this rule is that, if the appellate court were to set aside an administrative determination on a ground not presented to the agency, it would usurp the agency’s function and deprive the agency of the opportunity to consider the matter, make its ruling, and state the reasons for its action. See Wright, supra. Therefore, we decline to reach Bailey’s argument that Matson’s testimony was required to be under oath.
Moreover, to whatever extent Bailey might have preserved his challenge to the alleged hearsay nature of Matson’s testimony, his argument is without merit. The United States Supreme Court has held that, in certain circumstances, hearsay evidence can constitute substantial evidence in an administrative proceeding. See Richardson v. Perales, 402 U.S. 389, 402 (1971); see also Smith v. Everett, 276 Ark. 430, 431, 637 S.W.2d 537, 538 (1982) (evidence consisting of affidavits was “competent and constituted substantial evidence to support the Board’s findings”); Bookman v. Ark. State Med. Bd., 229 Ark. 143, 313 S.W.2d 826 (1958). Accordingly, we affirm the decision of the Board.
His businesses were located in Beebe, Bryant, Corning, Harrison, Little Rock, Mountain Home, Searcy, Sheridan, Walnut Ridge, Fordyce, Camden, Hot Springs, Cabot and Newport.
On January 26,2006, Joe Crider, the Supervisor of Consumer Credit in the Missouri Division of Finance, wrote to Bailey and informed him that the Missouri business license only authorized Bailey to conduct business at BMB’s West Plains, Missouri, location.
The Board determined that Bailey had operated “Pine BluffFast Cash, Inc.” without a permit from the Board in 2004; the Board fined him $20,200 at that time. Bailey submitted a check for that amount but subsequently stopped payment on that check, and the fine remained unpaid at the time of the 2006 hearing.
We note that Bailey stipulated to the introduction of what he termed “hearsay,” but did so subject to his previous objection. | [
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ROBERT L. BROWN, Justice.
Appellee Edward Joshaway was charged with two counts of felony theft of property arising from his alleged improper acceptance of money designated as salary or bonus payments related to his service as a member of the West Helena City Council. As with the other six companion cases, see State v. Richardson, 373 Ark. 1, 280 S.W.3d 20 (2008); State v. Holden, 373 Ark. 5, 280 S.W.3d 23 (2008); State v. Ashwood, 373 Ark. 7, 280 S.W.3d 25 (2008); State v. Lee, 373 Ark. 12, 280 S.W.3d 28 (2008); State v. Weaver, 373 Ark. 10, 280 S.W.3d 27 (2008); and State v. Whitfield, 373 Ark. 36, 280 S.W.3d 29 (2008), the State appeals from the circuit court’s dismissal of the charges.
On November 10, 2005, Edward Joshaway and four other members of the West Helena City Council, Clarence Richardson, Calvin Holden, Nathan Ashwood, and Eddie Lee, upon learning that they were not going to be elected to serve on the newly consolidated Helena-West Helena City Council, voted to pay elected West Helena city officials a full salary for the year 2006, a year in which the city officials would no longer be in office. Checks were issued to and negotiated by the five councilmen named above as well as the City Clerk, Renee Whitfield, and Mayor Johnny Weaver. An additional check was later issued to each of the five councilmen. The State charged Joshaway, Richardson, Holden, Ashwood, and Lee each with two counts of felony theft of property and Whitfield and Weaver each with one count of felony theft of property. The circuit court dismissed the charges against all seven defendants after ruling that the arrest warrants issued for the defendants were defective because they were signed by a deputy clerk without authority from a judicial officer. The State appealed from all seven dismissal orders.
The State’s sole argument on appeal is that the circuit court erred by dismissing the charges against Joshaway for an allegedly defective arrest warrant. We agree with the State for the reasons set out in this court’s opinion in State v. Richardson, supra, handed down this same date. We reverse and remand this matter for further proceedings. | [
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JIM HANNAH, Chief Justice.
James Flowers appeals his con- viction for capital murder, his conviction for aggravated robbery, and his sentences of life without parole and four-hundred-eighty months. On appeal, Flowers alleges that the circuit court erred in denying his directed-verdict motion, in denying his objection to the State’s representation of a jury instmction, in failing to grant his motion to suppress a photo spread, in admitting inconsistent identifications at trial, and in overruling his objection to a change of identification at trial. The circuit court did not err; therefore, its judgment is affirmed. Because Flowers was sentenced to life imprisonment on the capital murder conviction, jurisdiction to hear his appeal lies in this court. See Ark. Sup. Ct. R. 1-2(a)(2).
Directed- Verdict Motion
Flowers first alleges that the circuit court erred in denying his motion for a directed verdict. A directed-verdict motion is a challenge to the sufficiency of the evidence. Tryon v. State, 371 Ark. 25, 263 S.W.3d 475 (2007). A challenge to the sufficiency of the evidence asserts that the verdict was not supported by substantial evidence. See Strong v. State, 372 Ark. 404, 277 S.W.3d 159 (2008). Substantial evidence is evidence of sufficient force and character that without resorting to speculation and conjecture compels with reasonable certainty a conclusion one way or the other. Id. We review the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Id. We affirm where the record reveals that substantial evidence sustains the verdict. See id.
The following facts were submitted to the jury. At dusk on the evening ofjuly 29, 2005, two men walked up the street to the homes of Kenneth and Elnora Parks and Beverly Murdock. The Parks and Murdock homes stand side by side. At this time, Kenneth and Elnora Parks were inside their home. Beverly Murdock was not at home. Seven children ranging in ages from ten to fourteen years old were playing together in the yards of these two homes.
The two men approached the children and asked one if his father was home. The street lights were on and several of the children could see the two men clearly. Elnora came out to see what the men wanted. She too was able to see the two men clearly. After talking briefly to Elnora, the two men walked off down the street.
The children went into the Murdock home. At this time, Murdock still was not home. One of the children, Cierra Jarrett, went into her bedroom. The other six children remained in the front room playing video games and pool. They heard a noise at the carport door. Someone was breaking into the home. The two men the children had seen on the street entered the home and came into the front room. One man was larger than the other and both held pistols in their hands. Each man waved his pistol at the children.
The men stated that they wanted “the money and the weed.” They compelled the children to turn over chair cushions and help them search the house. The children were finally forced into the master bedroom where the men broke into a closet and removed something. One of the children stated that the men found money and drugs in the closet.
At about the time the men and the children went into the master bedroom, Cierra called Elnora on a cellular phone and told her that someone had broken into the house. Elnora awakened her husband and called 911. Elnora and Kenneth ran over to the Murdock home. Elnora was screaming, and as they reached the front door to the Murdock home, the front door opened. The larger of the two men came out. Kenneth stated that he was unarmed and only wanted his children. The man stated “Effyou, you motherfucker,” and fired one cartridge. The bullet from that cartridge struck Kenneth in the head, and he fell to the ground where he soon died. In an attempt to draw the man away from the children, Elnora turned and ran while yelling for the man to come after her.
Neither Elnora nor the children knew who the larger of the two men was, and they only learned of his name in the course of the criminal prosecution. At the time of the murder and robbery, none of the witnesses were able to give law enforcement more than a description of the two men. Law enforcement lifted fingerprints from the scene, but no useable prints of the robbers were obtained. A 9mm cartridge casing was retrieved from the scene, but that also provided no help in identifying the assailants. No other helpful physical evidence was found.
Several weeks after the incident, Brian Anderson and Deric Parks, two of the children present in the home at the time of the robbery, were walking a dog in the neighborhood. Brian saw a man on a porch who was staring at him, and Brian thought the man looked like one of the men who broke into the Murdock home. Law enforcement identified the man and set up a photo spread that included the man’s photograph. This photo spread was shown to Elnora and the children. The children could not identify any of the men in the spread as either of the two men who broke into the Murdock home. Elnora was not able to identify any of the men in the spread as the man who shot Kenneth. Additional photo spreads were created and shown to Elnora and the children in the weeks and months after the robbery and murder, and again, no suspect was recognized by the witnesses.
Law enforcement was able to make little progress in the case until November 2005 when Brian Anderson was riding home on the school bus and recognized a man in a nearby car. He thought the man was one of the perpetrators. He wrote down the license plate number of the car, and that number led police to James Flowers. Law enforcement set up a new photo spread that included Flowers.
The spread was composed of head-shot photographs of six men. Each man was black, each had a similar expression on his face, each was of about the same build and physical characteristics, and the background behind each man was a similar off-white featureless setting. The men differed in that they were not all wearing a similar shirt; however, little of the shirt was visible given these were head-shot photographs. One man was wearing what appeared to be a collarless orange county jail jumpsuit. Each man’s hair was slightly different. One was bald, one had somewhat longer but still relatively short hair, and two, including Flowers, had short hair but a markedly receding hair line.
Detective Steve Moore created the photo spread and showed it first to Brian. He picked out Flowers in a matter of seconds and gave a positive identification of Flowers. After showing the photo spread to Brian, Moore instructed Brian not to have any contact with any of the other witnesses to the robbery and murder. At trial, Brian testified that he had no contact with any of the other witnesses that day.
Moore determined that he could not contact Elnora and her children Eric and Deric until the boys got out of school that day. In the meantime, Moore rearranged the photo spread so that the photograph of Flowers appeared in a different position than it did when the spread was shown to Brian. That afternoon, Elnora brought Eric and Deric to the police station. They were unaware of the reason for their visit. Deric was first taken into a room by Moore. Another detective was present. Deric was shown the rearranged photo spread and provided a positive identification of Flowers in about one minute. Eric provided a look-alike identification. Elnora went right to the photograph of Flowers and gave a positive identification.
After meeting with Elnora and her children, Moore rearranged the photo spread back as it had been when shown to Brian. A few days later, Moore showed the spread to Dezmund Herrin, one of the other children present at the robbery. Dezmund went immediately to the photo of Flowers and gave a positive identification. The remaining children that viewed the photo spread did not identify Flowers.
At trial, Brian, Dezmund, Deric, and Eric positively identified Flowers as the larger of the two men who robbed them. Elnora positively identified Flowers as the man who shot Kenneth.
A directed-verdict motion alleges that the case may not be submitted to the jury because the State has failed to submit substantial evidence that, short of speculation and conjecture, would support a verdict against the criminal defendant. See Strong, supra. The verdict reached was that Flowers committed capital felony murder and aggravated robbery.
Robbery is a misdemeanor or felony theft committed by the use of force or the threat of force. See Ark. Code Ann. § 5-12-102(a) (Repl. 2006). Aggravated robbery may be committed by robbery while armed with a deadly weapon. See Ark. Code Ann. § 5-12-103 (Repl. 2006). Flowers held a pistol. A firearm is a deadly weapon. Mitchell v. State, 290 Ark. 87, 717 S.W.2d 195 (1986). Flowers committed theft while armed with a deadly weapon, and this is sufficient evidence to support a verdict of aggravated robbery. See Robinson v. State, 317 Ark. 17, 875 S.W.2d 837 (1994). The circuit court did not err in denying the motion for directed verdict on aggravated robbery.
Aggravated robbery was the felony underlying the capital murder charge. Capital murder may be committed when a person in immediate flight from the aggravated robbery causes the death of another person under circumstances manifesting extreme indifference to the value of human life. See Jefferson v. State, 372 Ark. 307, 276 S.W.3d 214 (2008); see also Ark. Code Ann. § 5-10-101(a)(1)(B) (Repl. 2006). Extreme indifference to the value of human life means deliberate conduct that causes the death of another person .Jefferson, supra. Pointing and firing a firearm at an unarmed victim constitutes extreme indifference to the value of human life. See Porter v. State, 358 Ark. 403, 191 S.W.3d 531 (2004).
The State also showed the element of immediate flight. As Flowers obtained the goods in the closet, Elnora was heard screaming, and Flowers left by the front door where he immediately met Elnora and Kenneth. The shot that killed Kenneth was fired in that moment of flight. The evidence offered constituted substantial evidence from which the jury could conclude that Flowers caused the death of Kenneth Parks in immediate flight from the felony of aggravated robbery under circumstances manifesting extreme indifference to the value of human life. The circuit court did not err in denying the motion for a directed verdict on capital murder.
Failure to Proffer a Jury Instruction /Misleading Argument on a Jury Instruction
Flowers next asserts that he was deprived of a fair trial when the state in closing argument asserted, “Only if all 12 of you have reasonable doubt as to the guilt of this defendant on aggravated robbery. . . .” Flowers’s counsel interrupted the State and asserted “that’s not what the jury instruction says.” Jury instruction number twenty-one provided: “If you have reasonable doubt of the defendant’s guilt on the charge of Aggravated Robbery, you will then consider the charge of robbery.” This language is taken directly from AMI Criminal 2d 302.
Flowers argues that the State’s representation of AMI 302 misled the jury into believing that before it could consider the lesser-included offense of robbery, all jurors had to have reasonable doubt on aggravated robbery. This same alleged error and argument is discussed in Boyd v. State, 369 Ark. 259, 253 S.W.3d 456 (2007), where the prosecutor argued at trial that the only way the jury could consider the lesser-included offense of first-degree murder was “if all twelve of you decide that he is not guilty of capital murder.” Boyd, 369 Ark. at 264, 253 S.W.3d at 460. The court concluded that this was “in essence” an argument that the word “you” in AMI 302 was ambiguous. Id. The court in Boyd further held that Boyd failed to preserve the issue for appeal because he did not proffer a jury instruction that he believed correctly stated the law. Likewise, in this case, because Flowers failed to proffer an instruction that corrected the alleged ambiguity, the issue will not be considered on appeal. See Boyd, supra.
Inherently Suggestive Photo Spreads
Flowers asserts that the photo spreads were inherently suggestive. However, Flowers does not develop an argument on this issue. This precludes review on appeal. See Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2003).
Identification at Trial
Flowers finally asserts that the circuit court erred in admitting Eric Parks’s in-court positive identification because Eric was only able to provide a look-alike identification from the photo spread. He also asserts that it was error to admit Deric Parks’s testimony because he was unable to recall various details about the robber’s face and clothing. However, Flowers did not object to Eric’s and Deric’s in-court identifications. This precludes appellate review of this issue. See Harris v. State, 366 Ark. 190, 234 S.W.3d 273 (2006).
Ark. Sup. Ct. R. 4-3(h)
Pursuant to Rule 4-3 (h) of the Arkansas Supreme Court Rules, the record has been reviewed for all objections, motions, and requests made by either party, which were decided adversely to Flowers, and no prejudicial error has been found.
Affirmed.
Flowers was convicted of four counts of aggravated robbery and sentenced to four-hundred-eighty months on each conviction; however, the sentences were ordered to run concurrendy.
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Per Curiam.
Appellant DFH/PJH Enterprises, LLC, seeks a motion for rule on clerk requiring the clerk of this court to accept tender of the record in the above-styled case. In its motion, Appellant asserts that it properly relied on the trial court’s authority to hold that Appellee Theresa Caldwell’s motion filed pursuant to Ark. R. Civ. P. 59 was timely filed on December 19, 2007. The motion was subsequently deemed denied on January 22, 2008, thereby requiring the record in this matter to be filed on or before April 22, 2008. Thus, according to Appellant, the clerk of this court should have accepted its tender of the record on March 24, 2008. Alternatively, Appellant accepts responsibility for any attorney error that may have caused the late filing of the record. For the reason explained below, we deny Appellant’s motion for rule on clerk.
In order to understand the instant motion, a brief recitation of the case’s procedural history is necessary. On December 5, 2007, the trial court entered an order denying Appellee’s request for entry of mechanics’ and materialmen’s liens, and also denied Appellant’s request for attorney’s fees. Appellant filed a notice of appeal from this order on December 13, 2007. Thereafter, on December 19, 2007, Appellee filed a motion for new trial or to set aside the judgment, pursuant to Rule 59. For some reason, the circuit clerk file stamped the motion’s enclosure letter, but the actual motion was not filed of record until January 3, 2008. Appellee then filed a notice of appeal and cross-appeal on January 4, 2008.
The trial court held a hearing on January 28, 2008, to consider several pending matters, including the late filing of Appellee’s Rule 59 motion. During that hearing, the trial court announced from the bench that due to a clerical misprision, Appellee’s Rule 59 motion should be treated as timely filed on December 19, 2007. A written order was subsequently entered on January 30, 2008. In that order, the trial court denied Appellee’s Rule 59 motion. Appellant filed a motion requesting clarification of the trial court’s January 30 order, averring that the order failed to recite that the Rule 59 motion was treated as filed on December 19 and that said motion was actually deemed denied on January 22, 2008, pursuant to Ark. R. App. P.-Civ. 4(b)(1), because the court failed to act on the motion within thirty days. The trial court entered an order on April 15, 2008, denying Appellant’s motion for clarification.
It is true that this court has held that a trial court may, under Ark. R. Civ. P. 60(b), correct a clerical error at any time. See, e.g., Holt Bonding Co., Inc. v. State, 353 Ark. 136, 114 S.W.3d 179 (2003). However, pursuant to Administrative Order 2(b)(2), an order announced from the bench does not become effective until reduced to writing and filed. Nat’l Home Ctrs., Inc. v. Coleman, 370 Ark. 119, 257 S.W.3d 862 (2007). Moreover, Ark. R. Civ. P. 58 provides that “[a] judgment or order is effective only when so set forth and entered as provided in Administrative Order No. 2.” Id. at 120-21, 257 S.W.3d at 863. This rule eliminates or reduces disputes between litigants over what a trial court’s oral decision in open court entailed. Id. If a trial court’s ruling from the bench is not reduced to writing and filed of record, it is free to alter its decision upon further consideration of the matter. Id. Simply put, the written order controls. Id.
Here, the trial court announced from the bench that, due to a clerical misprision, Caldwell’s Rule 59 motion should be treated as filed on December 19, 2007. The trial court failed to ever reduce this oral ruling to writing, even when Appellant filed a motion requesting clarification. As such, the record before us demonstrates that Appellee’s Rule 59 motion was not timely filed. Thus, pursuant to Ark. R. App. P.-Civ. 5(a), the record in this matter was due to be filed on or before March 11, 2008, ninety days from Appellant’s filing of the notice of appeal. Accordingly, Appellant’s motion is denied.
Motion denied.
Prior to the filing of the instant motion, Appellee Theresa Caldwell filed a motion to substitute a certified copy of the record for the original record filed by Appellant. See Caldwell v. DFH/PJH Enters., LLC, No. 08-416. Therein, Caldwell asserted that she was the appellant and entided to file the record in this appeal. Her motion is denied as of this date.
This order contained a certificate under Ark. R. Civ. P. 54(b) allowing the parties to proceed with an appeal. | [
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Tom Glaze, Justice.
Baptist Health, doing business as Baptist Health Rehabilitation Institute (BHRI), has petitioned this court for a writ of certiorari directed to the Circuit Court of Pulaski County. BHRI contends that the circuit court has acted in excess of its jurisdiction in ordering it to disclose certain documents that the hospital contends are privileged.
Respondent, 79-year-old Evelyn Reichen, presented to the emergency room at Baptist Hospital in Little Rock on November 4, 2004, after injuring her shoulder in a fall in a parking lot. She was admitted to the hospital and underwent surgery on her shoulder on November 9, 2004. Two days later, she was admitted to BHRI for rehabilitation. Reichen’s admitting physician stated in his orders that she should be monitored for her safety and daily living activities and would need assistance with ambulation. During her initial assessment, BHRI staff noted that Reichen was fragile and would require assistance for safe movement. An Assessment History Report dated November 14, 2004, stated that she was a fall risk due to weakness, and it also noted that sedation was among her medication side effects. The report also reflected that she should have side rails on her bed.
On November 22, 2004, Reichen developed an earache and was given Ambien and Darvocet. An entry on her chart that night stated “fall risk IDs in place- — supervise toilet.” Around 11:00 that night, Reichen needed to go to the bathroom and called for a nurse, but no one responded to her call. Sometime around 3:00 the next morning, Reichen was discovered on the floor of the bathroom, where she had fallen. A CT scan performed the next morning revealed that she had broken her left hip in the fall; she underwent a hip replacement surgery on November 23, 2004.
Reichen and her family sued BHRI on August 10, 2006, and BHRI filed an answer on August 22, 2006. On May 10, 2007, Reichen filed a motion for order compelling discovery in which she sought, among other things, “performance enhancement forms” that had not previously been disclosed. BHRI had previously objected to disclosing these forms on the grounds that they were protected by the “peer review and quality assurance privileges” found in Ark. Code Ann. § 16-46-105 (Repl. 1999). BHRI responded to Reichen’s motion to compel on May 24, 2007, again asserting that the materials she sought were protected by § 16-46-105.
The trial court held a hearing on Reichen’s motion to compel and, on August 31, 2007, entered a protective order in which it ordered BHRI to provide Reichen with copies of the occurrence report related to her fall. The court also ordered BHRI to provide Reichen with copies of reports of falls at BHRI for the six-month time period prior to November 23, 2004 (the “prior fall material”). The court also stated that it would review in camera any of the prior fall material deemed by BHRI to be protected by the quality assurance or peer review statute.
On September 17, 2007, the circuit court entered an order in which it stated that, after examining the “occurrence reports” in camera, it had determined that the “information contained on page one of the document is clearly the type of information typically contained in an incident report.” Because Ark. Code Ann. § 16-46-105 did not apply to “incident reports” and “other records,” the court found that the statute did not protect the materials and ordered BHRI to produce the documents for discovery. That same afternoon, BHRI filed the instant petition for writ of certiorari, asking this court to vacate and reverse the circuit court’s order compelling discovery.
BHRI argues that it is entitled to a writ of certiorari because the materials the trial court ordered it to disclose are privileged under Ark. Code Ann. § 16-46-105, which provides as follows:
The proceedings, minutes, records, or reports of organized committees of hospital medical staffs or medical review committees oflocal medical societies having the responsibility for reviewing and evaluating the quality of medical or hospital care, and any records, other than those records described in subsection (c) of this section, compiled or accumulated by the administrative staff of such hospitals in connection with such review or evaluation, together with all communications or reports originating in such committees, shall not be subject to discovery pursuant to the Arkansas Rules of Civil Procedure or the Freedom of Information Act of 1967, § 25-19-101 et seq., or admissible in any legal proceeding and shall be absolutely privileged communications.
Ark. CodeAnn.§ 16-46-105(a)(l)(A) (Repl. 1999) (emphasis added). BHRI contends that the trial court’s order compelling the production of the documents is in clear contradiction of the statute and that, absent extraordinary relief, it would suffer irreparable harm.
The standard for granting a writ of certiorari is well settled in Arkansas. A writ of certiorari is extraordinary relief, and there are two requirements that must be satisfied in order for this court to grant the writ. The first requirement is that there can be no other adequate remedy but for the writ of certiorari. Second, a writ of certiorari lies only where (1) it is apparent on the face of the record that there has been a plain, manifest, and gross abuse of discretion, or (2) there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record. See Jordan v. Circuit Court of Lee County, 366 Ark. 326, 331, 235 S.W.3d 487, 491 (2006) (citing Arkansas Game & Fish Comm'n v. Herndon, 365 Ark. 180, 226 S.W.3d 776 (2006)).
In addition, this court has held that, in determining the applicability of the writ, we will not look beyond the face of the record to ascertain the actual merits of a controversy, or to control discretion, or to review a finding of fact, or to reverse a trial court’s discretionary authority. Jordan, 366 Ark. at 331, 235 S.W.3d at 491; see also Chiodini v. Lock, 373 Ark. 88, 281 S.W.3d 728 (2008).
In this case, BHRI essentially seeks a writ of certiorari that would reverse the trial court’s ruling on a discovery question. This court has, on several occasions, specifically held that a petition for writ of certiorari is not an appropriate remedy when a party seeks to reverse a discovery order. Most recently, we addressed this precise issue in Chiodini v. Lock, in which the petitioner sought a writ of certiorari to reverse the circuit court’s rulings on his numerous discovery requests. In denying the request for the extraordinary writ, this court wrote as follows:
Our court has clearly held that a discovery order is not the proper subject for an extraordinary writ because the trial court’s jurisdiction allows it to decide such discovery issues. See Ford Motor Co. v. Harper, 353 Ark. 328, 107 S.W.3d 168 (2003) (Glaze, J., concurring) (citing Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1992)). In Ballard v. Martin, 349 Ark. 54, 79 S.W.3d 838 (2002), this court noted that a trial court has broad discretion in matters pertaining to discovery, and the exercise of that discretion will not be reversed by this court absent an abuse of discretion that is prejudicial to the appealing party.
.... Because a trial court’s discovery ruhng is a matter well within the court’s jurisdiction and discretion, a writ of certiorari will not he to correct any perceived error in the court’s ruhng.
Chiodini, 373 Ark. at 93, 281 S.W.3d at 732 (emphasis in original).
This court has denied petitions for writs of certiorari even when the alleged discovery violation pertains to materials that the petitioning party claims are privileged. In Arkansas State Highway Commission v. Ponder, 239 Ark. 744, 393 S.W.2d 870 (1965), Justice George Rose Smith wrote that, even where a party objects to discovery on the grounds that the information sought is privileged, certiorari will not lie:
This petitioner insists that if it comphes with the trial court’s order, under protest, its remedy by eventually taking an appeal from the final judgment will be inadequate, for, even if we should hold that the discovery order was an error, the harm will already have been done. In effect it is argued that if the cat is ever let out of the bag it can never be gotten back into the bag. An identical argument can be made whenever a discovery order is objected to. To sustain the argument in this case would mean that we should have to make a similar piecemeal decision whenever an application for discovery is unsuccessfully resisted at the trial level. We have repeatedly held that we cannot review interlocutory orders in this fashion.
Ponder, 239 Ark. at 745-46, 393 S.W.2d at 871 (emphasis added); see also Farm Servs. Coop. v. Cummings, 262 Ark. 810, 561 S.W.2d 317 (1978).
In its petition, BHRI urges that, if the reports at issue in this case are ordered to be disclosed through discovery, it will have a chilling effect on hospitals and medical care providers, in that hospitals will be reluctant to engage in the peer review and quality assurance process if they fear the materials will not be absolutely privileged. In essence, BHRI maintains that, once the cat has been let out of the bag, it cannot be put back; harm will have been done that cannot be repaired by taking an appeal. However, BHRI’s argument is precisely the same argument that the court rejected in Ponder, and we cannot agree that the writ will lie in these circumstances.
BHRI cites HCA Health Services of Midwest, Inc. v. National Bank of Commerce, 294 Ark. 525, 745 S.W.2d 120 (1988), in support of its argument that the reports at issue in this case are privileged and should not have been ordered to be disclosed. However, that case is distinguishable in at least two important respects: first, that case came before this court as an appeal, not as a petition for writ of certiorari; and second, the issue on appeal in HCA did not arise from a discovery matter. BHRI’s reliance on HCA is thus inapposite. Moreover, BHRI cites HCA for the proposition that the documents at issue fall under the protection of § 16 — 46—105; however, to decide this question would require us to delve into the underlying merits of the controversy, which this court has frequently held is improper in deciding whether to issue the writ. See Chiodini v. Lock, supra; Jordan v. Circuit Court of Lee County, supra; Ark. Dep’t of Human Servs. v. Collier, 351 Ark. 506, 95 S.W.3d 772 (2003).
In this case, BHRI appears to have conflated the circuit court’s jurisdiction, or its authority to act, with the court’s error in interpreting a statute. This precise issue was addressed in Arkansas Department of Human Services v. Circuit Court of Sebastian County, 363 Ark. 389, 214 S.W.3d 856 (2005). In that case, the court explained the distinction as follows:
The rule of almost universal application is that there is a distinction between want of jurisdiction to adjudicate a matter and a determination of whether the jurisdiction should be exercised. Jurisdiction of the subject matter is power lawfully conferred on a court to adjudge matters concerning the general question in controversy. It is power to act on the general cause of action alleged and to determine whether the particular facts call for the exercise of that power. Subject matter jurisdiction does not depend on a correct exercise of that power in any particular case. If the court errs in its decision or proceeds irregularly within its assigned jurisdiction, the remedy is by appeal or direct action in the erring court. If it was within the court’s jurisdiction to act upon the subject matter, that action is binding until reversed or set aside.
Id. at 393, 214 S.W.3d at 859 (quoting Young v. Smith, 331 Ark. 525, 529, 964 S.W.2d 784, 786 (1998)).
Here, it is clear that the circuit court had jurisdiction to enter a discovery order; what is at issue is whether the circuit court correctly interpreted a statute and applied its interpretation of that statute to the facts before it. Certiorari simply will not lie in these circumstances. See id. at 394, 214 S.W.3d at 860.
As a final matter, we note that BHRI, in its reply brief, attempts to rely on Arkansas Department of Human Services v. Collier, 351 Ark. 506, 95 S.W.3d 772 (2003), in support of its argument that an erroneous interpretation or application of a statute may warrant a writ of certiorari. However, Collier is distinguishable on its facts. There, the Faulkner County Circuit Court ordered an unborn fetus to be placed in the custody of the Department of Human Services and further ordered DHS to pay for the fetus’s mother’s prenatal care. DHS petitioned for a writ of certiorari, alleging that because there was no “juvenile,” as defined by the Juvenile Code, the court lacked jurisdiction to order the fetus into DHS custody as dependent-neglected or to order DHS to pay for prenatal care. Collier, 351 Ark. at 512, 95 S.W.3d at 775.
This court agreed with DHS. Noting that the Juvenile Code defined a “juvenile” as an individual “from birth to the age of eighteen years,” see Ark. Code Ann. § 9-27-303(29) (Repl. 2002), the court held that, in the context of a dependency-neglect case, an unborn fetus was not a “juvenile.” 351 Ark. at 522, 95 S.W.3d at 781. Because the Juvenile Code only gave the courts jurisdiction over a “juvenile,” the court clearly acted in excess of its jurisdiction in placing the fetus in the custody of DHS and requiring DHS to provide prenatal care. Id. at 523, 95 S.W.3d at 782.
As mentioned above, in the instant case, BHRI argues that Collier stands for the proposition that an erroneous interpretation of a statute can justify the issuance of the writ. However, that argument simply misses the mark. Collier does not mean that certiorari is proper to correct an improper statutory interpretation; rather, it held that, where a statute does not give a court jurisdiction to act, certiorari can be used to control acts the court takes that are in excess of its jurisdiction.
BHRI goes further in its reply and specifically asks this court to “interpret the law.” In essence, BHRI is asking this court to interpret the statute at issue and determine whether the trial court properly construed and applied it — that is, it wants us to address the merits of the underlying discovery ruling. However, that is exactly what the court will not do on a petition for writ of certiorari. See, e.g., Jordan v. Circuit Court of Lee County, supra (“we will not look beyond the face of the record to determine the actual merits of a controversy”).
Petition for writ of certiorari denied.
In HCA, supra, this court held that a nurse’s written response to a personnel action report fell within the ambit of the peer-review and quality-assurance privilege and should not have been admitted into evidence at trial. See HCA Health Services, 294 Ark. at 534, 745 S.W.2d at 125.
Ark. Code Ann. § 9-27-305 (Repl. 2008) provides that “[a]ny juvenile within this state may be subjected to the care, custody, control, and jurisdiction of the circuit court.” (Emphasis added.) | [
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Jim Gunter, Justice.
Appellant Brian Robinson was convicted in a jury trial of first-degree murder, a Class Y felony and a violation of Ark. Code Ann. § 5-10-102 (Repl. 2006), and vehicular fleeing, a Class A felony and a violation of Ark. Code Ann. § 5-54-125 (Repl. 2005). For these convictions, Robinson was.sentenced by a Randolph County jury to life imprisonment in the Arkansas Department of Correction. Appellant brings his appeal and argues that the circuit court erred in refusing to suppress Robinson’s statement to Arkansas State Police. We reverse and remand.
On October 17, 2006, the victim, Brian Wilbanks, and Cheryl Crow arrived at a residence, which she shared with Robinson, on Bucksnort Road near Pocahontas. As Crow and Wilbanks sat in Wilbanks’s pickup truck, Robinson confronted the couple. An argument ensued, and Robinson shot Wilbanks. Robinson then fled the scene in his vehicle. Robinson’s flight escalated into a police chase. The chase ended when a patrol car was hit by Robinson’s car. Robinson ran from his car and was apprehended by Randolph County officers in the woods.
After the pursuit on foot, Sheriff Brent Earley took Robinson into custody and read Robinson his Miranda rights from a pre-printed card. Robinson indicated that he understood his rights. Earley asked, “Why are you running from the police?” Robinson responded, “I don’t want to say anything right now.” Earley then took him down the hill and asked Robinson why he would “shoot somebody over a woman.” Robinson replied that “this goes back a lot further than what you understand.” Winded from the chase, Earley turned Robinson over to a couple of deputies and went back into the woods to look for additional evidence. The officers put Robinson in the passenger seat of a patrol vehicle at the scene of Robinson’s arrest.
Special Agent Wendall Jines confirmed with Robinson that he had been given his Miranda rights and that he understood those rights. According to Jines’s testimony, he approached Robinson and said, “I need to talk to you about what happened. Okay? Do you understand your rights as the sheriff advised you earlier?” Robinson replied “no” at first but added, “Yes, sir. Yes, sir. I have.” Jines then taped Robinson’s statement while the two individuals sat in the patrol vehicle at the scene. Jines further testified that once Robinson gave his statement, he never requested an attorney and never attempted to end the conversation. Robinson then gave a second statement later that morning at the Randolph County Sheriff s Department.
On November 9, 2006, Robinson filed a motion to suppress. In his motion, he requested a Denno hearing pursuant to Jackson v. Denno, 378 U.S. 368 (1964), and Ark. Code Ann. § 16-89-107 (Repl. 2005). On February 26, 2007, the circuit court held a hearing on Robinson’s motion to suppress and denied his motion, ruling that the first statement was to be admitted at his trial. On March 2, 2007, a Randolph County jury convicted Robinson of first-degree murder and vehicular fleeing, and he received a sentence of life imprisonment. He now brings his appeal.
For his first point on appeal, Robinson argues that the circuit court erred in denying his motion to suppress his statement given after he was apprehended by police on the night of the murder. Specifically, Robinson contends that Sheriff Earley and Special Agent Jines violated Ark. R. Crim. P. 4.5 (2007) by improperly refusing to cease interrogation. In response, the State argues that the circuit court properly denied Robinson’s motion to suppress the statement that he gave to police. The State contends that Robinson never invoked his right to remain silent at any time during his interview. Further, the State counters that there was no evidence of any coercive behavior by any officer that suggests that Robinson made a statement against his will.
We clarified the appropriate standard of review for cases involving a trial court’s ruling on the voluntariness of a confession in Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003), where we stated: “We make an independent determination based upon the totality of the circumstances, and the ruling will only be reversed if it is clearly against the preponderance of the evidence.” Grillot, 353 Ark. at 310, 107 S.W.3d at 145.
A person subject to custodial interrogation must first be informed of his right to remain silent and right to counsel under Miranda v. Arizona, 384 U.S. 436 (1966). “Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Miranda, 384 U.S. at 473-74; see also Ark. R. Crim. P. 4.5 (2007). An indication that a defendant wishes to remain silent is an invocation of his Miranda rights. Once the right to remain silent is invoked, it must be “scrupulously honored.” State v. Pittman, 360 Ark. 273, 276, 200 S.W.3d 893, 896 (2005); Whitaker v. State, 348 Ark. 90, 95, 71 S.W.3d 567, 570 (2002) (citing Miranda, 384 U.S. at 479). The meaning of “scrupulously honored” was discussed in James v. Arizona, 469 U.S. 990, 992-93 (1984), where the United States Supreme Court stated:
To ensure that officials scrupulously honor this right, we have established in Edwards v. Arizona, [451 U.S. 477 (1981)], and Oregon v. Bradshaw, supra, the stringent rule that an accused who has invoked his Fifth Amendment right to assistance of counsel cannot be subject to official custodial interrogation unless and until the accused (1) “initiates” further discussions relating to the investigation, and (2) makes a knowing and intelligent waiver of the right to counsel under the [waiver] standard of Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), and its progeny. See Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984).
Unwarned statements or statements improperly taken after the invocation of the right to remain silent or the right to counsel must be excluded from the State’s case in chief to ensure compliance with Miranda’s dictates. See Michigan v. Harvey, 494 U.S. 344 (1990). In Standridge v. State, 329 Ark. 473, 479, 951 S.W.2d 299, 301 (1997), we noted that “[w]e see no distinction between the right to counsel and the right to remain silent with respect to the manner in which it must be effected.” Id. at 479, 951 S.W.2d at 301. “If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Miranda, 384 U.S. at 475. This high bar on the State’s burden of proving waiver of the right to remain silent is best understood as a result of the view that courts are to “indulge every reasonable presumption against waiver of fundamental constitutional rights.” Michigan v. Jackson, 475 U.S. 625, 633 (1986) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
With this precedent in mind, we turn to the present appeal. At the outset, we note that this case does not present an issue regarding the right to counsel, but rather, Robinson argues that, pursuant to Rule 4.5, the circuit court should have suppressed his statement to Earley because he invoked his right to remain silent when he indicated, “I don’t want to say anything right now.” Thus, once a defendant is read his or her Miranda rights, the relevant inquiry is whether a defendant’s initial response “indicated in any manner” under Miranda and Rule 4.5 an invocation of the right to remain silent or an invocation of the right to counsel. If so, the interrogation must immediately cease whenever a suspect states that he or she wants counsel, Miranda, 384 U.S. at 474, or when he or she invokes the right to remain silent, pursuant to Miranda and Rule 4.5.
First, we note that neither the record reflects nor the State argues the existence of a waiver. We agree with Robinson’s argument that, under the standard set forth in Miranda, he invoked his right to remain silent. Unlike the appellant in Standridge, supra, who said, “I ain’t ready to talk,” but immediately continued answering questions of the police officers, Appellant in this case indicated, “I don’t want to say anything right now,” immediately upon being advised of his Miranda rights. Robinson’s response was an invocation of his right to remain silent and an initial indication that he did not wish to be questioned. Having invoked his Miranda rights “in any manner” under both Miranda, supra, and our Rule 4.5, law enforcement was obligated to “scrupulously honor” his assertion of his rights and should have refrained from continuing to ask Robinson about the crime. James, supra.
Second, we note that, after a delay of walking down the hill, Earley asked Robinson why he would “shoot somebody over a woman,” and Robinson replied that “this goes back a lot further than what you understand.” At the suppression hearing, Earley testified that he and Robinson “had had some conversation within that time-frame after we got him down the hill.” That conversation, however, was not initiated by Robinson. See Edwards, supra. Moreover, any additional questioning by Jines should have taken place only if Robinson had initiated discussion with the police and had knowingly and intelligently waived his rights. See Otis v. State, 364 Ark. 151, 161, 217 S.W.3d 839, 844 (2005). Therefore, under these circumstances, we hold that, under Miranda and Rule 4.5, the officer should have ceased his interrogation after Robinson stated, “I don’t want to say anything right now.” Because we conclude that Robinson invoked his right to remain silent during his first statement with Earley and never waived that right, and because his motion to suppress included “[a]ny [admission or [cjonfession,” we refuse to delve into the merits of his arguments in his first point regarding his subsequent two statements given to Jines.
Therefore, based upon the foregoing reasons, as well as our standard of review in viewing the totality of the circumstances, we hold that the circuit court erroneously denied Robinson’s motion to suppress. Accordingly, we reverse the circuit court’s ruling and remand for a new trial, which excludes Robinson’s statements to Earley and Jines. Because we dispose of Robinson’s case on his first point on appeal, we decline to address his second point on appeal regarding the issue of whether his statement was a product of police intimidation and coercion.
Pursuant to Ark. Sup. Ct. R. 4-3(h) (2007), the record in this case has been reviewed for all other objections, motions, and requests made by either party, which were decided adversely to Appellant, and no prejudicial error has been found. See, e.g., Gillard v. State, 372 Ark. 98, 270 S.W.3d 836 (2008).
Reversed and remanded.
Brown and Imber, JJ., concur.
Glaze, J., dissents. | [
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Annabelle Clinton Imber, Justice.
Appellant John H. Boldin was convicted of first-degree murder and aggravated robbery by a Logan County jury. He received consecutive sentences of fife imprisonment and forty years’ imprisonment. On appeal, Boldin raises three points of error: (1) the circuit court erred in denying his motion to suppress; (2) the circuit court erred in limiting his presentation of his defense; and (3) the circuit court erred in denying his motion for directed verdict.
Sufficiency of the Evidence
On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. See Coggin v. State, 356 Ark. 424, 156 S.W.3d 712 (2004). Although Boldin challenged the denial of his directed-verdict motion in his final point on appeal, double jeopardy concerns require that we review arguments regarding the sufficiency of the evidence first. See McDuffy v. State, 359 Ark. 180, 196 S.W.3d 12 (2004).
In reviewing a challenge to the sufficiency of the evidence, this court views the evidence in a light most favorable to the State and considers only the evidence that supports the verdict. Id. Substantial evidence is that evidence which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id.
Circumstantial evidence may provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Id. In other words, if there are two equally reasonable conclusions as to what occurred, this merely gives rise to a suspicion of guilt, which is not enough to support a conviction. Id. Upon review, the appellate court’s role is to determine whether the jury resorted to speculation and conjecture in reaching its verdict. Id. Overwhelming evidence of guilt is not required in cases based on circumstantial evidence; rather, the test is one of substantiality. Id.
A person commits murder in the first degree when “[wjith the purpose of causing the death of another person, the person causes the death of another person.” Ark. Code Ann. § 5-10-102(a) (Repl. 2006). Robbery is committed when, “with the purpose of committing a felony or misdemeanor theft . . . the person employs or threatens to immediately employ force upon another.” Ark. Code Ann. § 5-12-102(a) (Repl. 2006). Aggravated robbery is committed when a person “commits robbery” and is either “armed with a deadly weapon; [Represents by word or conduct that he or she is armed with a deadly weapon; or [Rnflicts or attempts to inflict death or serious physical injury upon another person.” Ark. Code Ann. § 5-12-103(a) (Repl. 2006).
The following facts were presented to the jury in the instant case. On August 21, 2005, Pamela Agilar saw her son Kevin Agilar packing his car, a white Dodge Avenger with a gray hood. Kevin was preparing to travel from his home in North Little Rock to Louisiana for a job. The next day, Kevin Agilar’s body was found under the State Highway 109 bridge, in Logan County.
Also on August 21, Cody Young saw Agilar and Boldin together at Young’s home in Gravel Ridge. At that time, Boldin allegedly told Young that he intended to kill Agilar and steal his car. Boldin also indicated that he was on his way to the home of Young’s brother, James Dustin Carter. So, once the two left, Young called Dustin Carter to tell him about Boldin’s intentions.
In the early morning hours of August 22, Boldin arrived at Dustin and Savannah Carter’s home in Hartman, Johnson County. According to Savannah, Dustin and Boldin momentarily left the room, while she remained in bed. Dustin returned a few minutes later and retrieved his gun, which he gave to Boldin. Dustin had Savannah drive him and Josh Baccam to the State Highway 109 bridge, with Boldin following behind in the victim’s car. When they reached the bridge, Boldin drove the victim’s car under the bridge. Savannah turned her car around and waited in a nearby parking lot. Boldin then returned from beneath the bridge, still driving the victim’s car. Later that day, Savannah witnessed Boldin and Dustin attempting to clean the inside of the victim’s car and burning things taken from inside the car. Boldin also brought her a basket of clothing from the car and asked her to wash the clothing.
Dustin Carter testified that the morning Boldin arrived at his home, Boldin was driving a white car, and he showed Dustin an unconscious person in the passenger’s seat. He admitted that he allowed Boldin to borrow his gun, a Bryco Arms nine-millimeter pistol. Dustin testified to leading Boldin to the State Highway 109 bridge and stated that when Boldin drove under the bridge, the passenger was in the car; but, when Boldin returned, the passenger was gone. Dustin also admitted helping Boldin clean the victim’s car, and he received a stereo from the car. According to Dustin, Boldin told him that he had shot Agilar and showed Dustin a spent bullet Boldin had retrieved from the car. Johnny Hern, a neighbor of the Carters, testified that Boldin joked about the idea of shooting Agilar. He also showed Johnny Hern a spent bullet. Floyd Hern, Dustin’s uncle, also testified that Boldin was in possession of Agilar’s car. Boldin was arrested after law enforcement located the victim’s car near the Carter home.
The state medical examiner, Dr. Daniel Konzelman, testified that Agilar died of a single gunshot wound to the head and the body had some minor injuries that could have been inflicted by the body being rolled or by the body striking the ground from a standing position. He also stated that the large amounts of blood found near the body indicated that the victim was probably shot either under the bridge or shortly before the body was dumped there.
A Bryco Arms nine-millimeter pistol and some of Boldin’s clothing were recovered by police after a search of the Carter home. Forensic testing of Boldin’s clothing revealed the presence of Agilar’s blood. Samples taken from the car were identified as being the victim’s blood, and Boldin’s finger and palm prints were found inside the victim’s car.
In addition, a cigarette lighter was among the items in Boldin’s possession when he was arrested. Upon examining the lighter, officers found a spent bullet hidden inside. Testing at the state crime laboratory revealed that tool markings on both the spent bullet and an empty casing found near the body were consistent with those produced by the same type of Bryco Arms nine-millimeter pistol found in the Carter home.
Proof of a criminal defendant’s intent must usually be inferred from the circumstances of the crime. Leaks v. State, 345 Ark. 182, 45 S.W.3d 363 (2001). Intent may be inferred from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds. Id. In addition, a person is presumed to intend the natural and probable consequences of one’s actions. Id.
Ample evidence was presented to support Boldin’s convictions. Several witnesses saw Boldin with the victim’s car, and two witnesses saw Boldin drive the car under the bridge where the victim’s body was found and return without the victim in the car. Boldin also told Cody Young that he intended to kill Agilar and steal his car, and after the murder he boasted about shooting Agilar and showed two witnesses the bullet he found in the victim’s car. The bullet he was carrying was consistent with the suspected murder weapon, and the victim’s blood was found on his clothing.
Boldin asserts that Cody Young, Savannah Carter, and Dustin Carter were accomplices to the crime, and without their testimony, the State would not have been able to prove its case. He asks this court to evaluate the evidence without the testimony of his alleged accomplices pursuant to Arkansas Code Annotated § 16-89-lll(e) (Repl. 2005). However, none of the witnesses were charged as accomplices, and Boldin neither requested that the trial court declare them accomplices nor did he proffer an accomplice jury instruction for the record. Accordingly, we conclude that Boldin’s argument as to accomplice testimony was not preserved for appeal. See Windsor v. State, 338 Ark. 649, 656, 1 S.W.3d 20, 24 (1999).
Presentation of a Defense
In line with his arguments concerning the sufficiency of the evidence and accomplice testimony, Boldin also argues that the circuit court hampered his ability to present his defense by limiting defense counsel’s questions to witnesses regarding their involvement in the crimes. He argues that both the prosecution and the trial court mistook his attempts to question witnesses as an attempt to present an accomplice-liability defense, and, thus, the court erroneously limited defense counsel’s cross-examination of key witnesses. He asserts that it was the State’s duty to prove accomplice liability on the part of Cody Young, Dustin Carter, and Savannah Carter. He again argues that the State would not have been able to meet its burden of proof without the accomplice testimony of those witnesses. In effect, he reargues his sufficiency-of-the-evidence argument in relation to the circuit court’s limiting of his defense.
Prior to trial, the prosecution filed a discovery motion requesting defense counsel’s disclosure of Boldin’s proposed defense, pursuant to Arkansas Rule of Criminal Procedure 18.3. Defense counsel never disclosed a specific defense to the prosecutor, and instead asserted a defense of general denial. During cross-examination of Savannah Carter, defense counsel began asking her to elaborate on her involvement in the crimes, and the prosecutor objected. The prosecutor argued that defense counsel was attempting to implicate Savannah Carter and Dustin Carter as possible perpetrators of the crime, without disclosing Boldin’s plan to assert an accomplice defense. A lengthy discourse between counsel and the trial judge followed, a pertinent part of which is quoted below:
Defense Counsel: We haven’t said anything about an accomplice defense, your Honor, the State has.
Court: Okay.
Defense Counsel: We’ve not said, yes, we’re using an accomplice defense. [The prosecutor] hasn’t accused us of using an accomplice defense.
Court: Then any sort of questions that go to close to an accomplice defense I’m going to — are irrelevant.
We review evidentiary decisions by the trial court under an abuse of discretion standard. Travis v. State, 371 Ark. 621, 269 S.W.3d 341 (2007). Under Arkansas Rule of Criminal Procedure 18.3, “[s]ubject to constitutional limitations, the prosecuting attorney shall, upon request, be informed as soon as practicable before trial of the nature of any defense which defense counsel intends to use at trial and the names and addresses of persons whom defense counsel intends to call as witnesses in support thereof.” Ark. R. Crim. P. 18.3 (2007). We have held that Rule 18.3 applies with equal force to testimony offered in support of a general denial defense and testimony offered to support an affirmative defense. Mitchell v. State, 306 Ark. 464, 816 S.W.2d 566 (1991). Discovery in criminal cases, within constitutional limitations, must be a two way street. Id. This interpretation promotes fairness by allowing both sides the opportunity for full pretrial preparation, preventing surprise at trial, and avoiding unnecessary delays at trial. Id.
Boldin’s argument that accomplice liability of the witnesses was part of the State’s burden of proof was a de facto attempt to establish an accomplice defense by circumventing our long established rules of procedure. Accordingly, we conclude that the circuit court’s decision to limit defense counsel’s questioning of the alleged accomplices was not an abuse of discretion.
Motion to Suppress
Boldin claims that the investigating officer violated Arkansas Rules of Criminal Procedure 2.2 and 2.3 when he arrived at the Carter home and asked Boldin to show him the victim’s car without informing Boldin that he was not required to assist the officer. Accordingly, Boldin argues that the circuit court should have granted his motion to suppress the evidence recovered from his interaction with police. In making his argument, Boldin attempts to compare the circumstances of the instant case with our case law regarding “knock and talk” procedures. See State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004).
When reviewing a circuit court’s decision to deny a defendant’s motion to suppress, we make an independent determination, based on the totality of the circumstances, and view the evidence in the light most favorable to the State. Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002). We reverse only if the circuit court’s ruling is clearly against the preponderance of the evidence. Id. Additionally, we defer to the circuit court’s superior position to judge the credibility of witnesses. Id.
In the instant case, the Johnson County Sheriffs Department received an anonymous phone call that a vehicle meeting the description of Kevin Agilar’s was in the vicinity of Johnny Hern’s house. Officer Donald Cunningham went to Johnny Hern’s residence, and he was informed that Dustin Carter and his “buddy” had just left in the car. Officer Cunningham then went to the nearby home of Dustin Carter. Floyd Hern answered the door followed by Dustin. Officer Cunningham told Dustin that he had information that Dustin had recently been in a vehicle linked to a murder and stated that he was trying to locate the vehicle. Dustin told the officer that the car belonged to his friend and called Boldin to the door. Officer Cunningham explained the circumstances of his investigation to Boldin, whereupon Boldin told the officer that he had recently purchased the car from a friend for a cheap price. Boldin then commented that he knew the deal was “too good to be true.” Officer Cunningham asked if Boldin would show him the car. Boldin answered in the affirmative and accompanied Cunningham in his squad car to where the victim’s car was parked less than a mile behind the residence. Boldin was allowed to exit the car and walk around the area without restraints until Cunningham confirmed that the car belonged to the victim. At that point, he placed Boldin under arrest.
As to the applicability of Rule 2.3, Boldin’s argument is clearly without merit. Rule 2.3 states that when an officer requests that a person come to or remain at a police station, prosecuting attorney’s office, or other similar place, the officer “shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.” Ark. R. Crim. P. 2.3 (2007). Here, Officer Cunningham simply did not ask Boldin to accompany him to the police station, prosecutor’s office, or any other similar place. Similarly, Boldin’s argument regarding the application of our standard for “knock and talk” cases also fails because we have expressly declined to extend our holdings in Brown v. State, supra, to situations other than the search of a residence. Otis v. State, 364 Ark. 151, 217 S.W.3d (2005).
Thus, the only question that remains is whether Officer Cunningham’s actions were in violation of Rule 2.2. Under Ark. R. Crim. P. 2.2,
(a) A law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. The officer may request the person to respond to questions, appear at a police station, or to comply with any other reasonable request.
(b) In making a request pursuant to this rule, no law enforcement officer shall indicate that a person is legally obligated to furnish information or to otherwise cooperate if no such legal obligation exists. Compliance with the request for information or other cooperation hereunder shall not be regarded as involuntary or coerced solely on the ground that such a request was made by a law enforcement officer.
Ark. R. Crim. P. 2.2 (2007).
This court has interpreted Rule 2.2 to provide that an officer may approach a citizen much in the same way a citizen may approach another citizen and request aid or information. Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002). Not all personal intercourse between policemen and citizens involves “seizures” of persons under the Fourth Amendment. Id. A “seizure” of a person occurs when an officer, by means of physical force or show of authority, has in some way restrained the liberty of a person. Id. Police-citizen encounters have been classified into three categories. Id.; see also State v. McFadden, 327 Ark. 16, 938 S.W.2d 797 (1997). The first and least intrusive is when an officer merely approaches an individual on a street and asks if he is willing to answer some questions. Scott v. State, 347 Ark. 767, 67 S.W.3d 567. “Because the encounter is in a public place and is consensual, it does not constitute a ‘seizure.’ ” Id. at 776, 67 S.W.3d at 573. The second is when the officer may justifiably restrain an individual for a short period of time if the officer has an “articulable suspicion” that the person has committed or is about to commit a crime. Id. The initially consensual encounter is transformed into a seizure when, considering all the circumstances, a reasonable person would believe that he was not free to leave. Id. Finally, there is a full-scale arrest, which must be based upon probable cause. Id.
In the instant case, once the investigating officer learned that Boldin had recently “bought” the car, he had an articulable suspicion that Boldin had committed a crime. At that point, Officer Cunningham was justified in detaining Boldin for a reasonable amount of time. In fact, Boldin agreed to show the officer where the car was parked. According to the undisputed testimony, Boldin walked freely around the area of the victim’s car until he was placed under arrest. Although Officer Cunningham was in uniform, he did not show Boldin his weapon, and he did not tell Boldin that he was required to assist him. We have never held that Rule 2.2 specifically requires an officer to inform a person that he is not required to assist the officer; instead, the rule just prohibits an officer from insinuating that the person is required to do so. See Ark. R. Crim. P. 2.2. Based upon the totality of the circumstances, we cannot say that Officer Cunningham violated Rule 2.2. Thus, we affirm the circuit court’s decision to deny Boldin’s motion to suppress.
Rule 4-3(h) Review
In compliance with Ark. Sup. Ct. R. 4-3(h), the record has been examined for all objections, motions and requests made by either party that were decided adversely to Boldin, and no prejudicial error has been found. Doss v. State, 351 Ark. 667, 97 S.W.3d 413 (2003).
Affirmed.
Danielson, J., not participating. | [
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Donald L. Corbin, Justice.
Appellant Deandra Laron Stephenson appeals the judgment and commitment order of the Pulaski County Circuit Court convicting him of two counts of capital murder and one count of a terroristic act, for which he was sentenced to consecutive terms of life imprisonment and forty-five years, respectively. On appeal, Appellant raises one argument for reversal: the circuit court erred in denying his motion for directed verdict when the State failed to provide sufficient evidence to prove Appellant committed two capital murders and a terroristic act. As Appellant received a life sentence, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(2). We find no error and affirm.
On July 1, 2006, Lademon Taylor, Christopher Taylor, and Leslie Harper went shopping at McCain Mall in North Little Rock, Arkansas. While Lademon and Christopher were in a store, Harper went to get a drink when he bumped into Rashon McKinney who was playing with and looking at his cell phone. After a brief conversation about what Harper was doing and who he was with, the two parted ways and Harper met back up with the others. They then exited the mall and got in their car to leave. Immediately after sitting down in their vehicle, multiple shots were fired into the car hitting all three occupants. The shooter then jumped into the passenger seat of another car and drove off. Harper managed to get out of the car and was taken to the hospital by a mall patron whom he stopped in the parking lot. When the North Little Rock police arrived on the scene, Lademon and Christopher were dead inside the car.
Following an investigation into the shooting, on September 29, 2006, Appellant was charged with two counts of capital murder, pursuant to Ark. Code Ann. § 5-10-101 (Repl. 2006), and one count of a terroristic act, pursuant to Ark. Code Ann. § 5-13-310 (Repl. 2006). The felony information also stated that the sentences received for committing these crimes should be increased for each offense in accordance with Ark. Code Ann. § 16-90-120 (Repl. 2006). On March 5, 2007, Appellant filed a motion for recusal, which the circuit court addressed and denied prior to trial.
Appellant’s trial began on March 12, 2007, during which the State called multiple witnesses, including Appellant’s accomplices Norman Dednam and McKinney. During Dednam’s testimony, he identified Appellant as the shooter. Specifically, he explained that he was driving through the mall parking lot when Appellant told him to stop the car. Upon stopping, Appellant exited the vehicle and began shooting into the victims’ car. Furthermore, McKinney testified that, after running into Harper, he called Appellant and told him that Lademon, Christopher, and Harper were at the mall. McKinney explained that he called Appellant because he had heard about Lademon and Harper robbing Appellant earlier that week.
At the close of the State’s evidence, Appellant moved for a directed verdict on all charges based upon the State’s failure to provide substantial evidence to support the crimes. Specifically, he argued that the testimony of the accomplices had not been corroborated by independent evidence tying Appellant to the crimes. The circuit court denied Appellant’s motions. After the defense rested, Appellant renewed his motions for directed verdict based upon his previous arguments. The circuit court again denied his motions. Following deliberations, the jury found Appellant guilty of two counts of capital murder and one count of a terroristic act. This appeal followed.
On appeal, Appellant renews his challenge to the sufficiency of the evidence. Specifically, he asserts that the circuit court erred in denying his motion for directed verdict because his conviction was based upon uncorroborated accomplice testimony. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Id.
As stated earlier, Appellant was convicted of two capital murders and a terroristic act. Under Arkansas law, a person commits capital murder if “[w]ith the premeditated and deliberated purpose of causing the death of another person, the person causes the death of any person.” Ark. Code Ann. § 5-10-101(a)(4). Premeditation and deliberation may be formed in an instant. Winston v. State, 372 Ark. 19, 269 S.W.3d 809 (2007). Intent can rarely be proven by direct evidence; however, a jury can infer premeditation and deliberation from circumstantial evidence, such as the type and character of the weapon used; the nature, extent, and location of wounds inflicted; and the conduct of the accused. Id.
Additionally, a person commits a terroristic act if, while not in the commission of a lawful act, and with the purpose of causing injury to persons or property, he shoots at a vehicle that is being operated or that is occupied by another person. See Ark. Code Ann. § 5-13-310(a)(l). Moreover, a person who commits a terroristic act is guilty of a Class Y felony “if the person with the purpose of causing physical injury to another person causes serious physical injury or death to any person.” Ark. Code Ann. § 5-13-310(b)(2).
When accomplice testimony is considered in reaching a verdict, Arkansas law provides that a person cannot be convicted based upon the testimony of an accomplice “unless corroborated by other evidence tending to connect the defendant. . . with the commission of the offense.” Ark. Code Ann. § 16-89-111(e)(1)(A) (Repl. 2006). Furthermore, “corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.” Ark. Code Ann. § 16-89-lll(e)(l)(B). It must be evidence of a substantive nature since it must be directed toward proving the connection of the accused with a crime and not toward corroborating the accomplice testimony. Green, 365 Ark. 478, 231 S.W.3d 638. The corroborating evidence need not be sufficient standing alone to sustain the conviction, but it must, independent from that of the accomplice, tend to connect to a substantial degree the accused with the commission of the crime. Id. The test is whether, if the testimony of the accomplice were completely eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Id. The corroborating evidence may be circumstantial so long as it is substantial; evidence that merely raises a suspicion of guilt is insufficient to corroborate an accomplice’s testimony. Id.
In the present case, Appellant claims that there was insufficient evidence that he caused the death of another person as well as that he projected an object at a conveyance. Appellant does not dispute that shots were fired into a vehicle occupied by three individuals, which killed the driver and the back-seat passenger as well as wounded the front-seat passenger. Rather, he argues that there was no evidence that he was present at the scene of the crime or that he was the shooter. In support of this argument, Appellant asserts that the only evidence presented that he fired the shots, which constituted the criminal act, was the unreliable testimony of an accomplice to the crime who was testifying in hopes of a lenient offer from the State. Specifically, he asserts that Dednam, an accomplice, was the only person in the case to identify Appellant as the shooter and that Dednam was the only person who placed Appellant at the scene of the crime. He further argues that the only evidence tending to corroborate Dednam’s testimony was that of McKinney, another accomplice. We disagree and hold that, after eliminating both accomplices’ testimony, there is sufficient evidence that tends to connect Appellant to the commission of the crimes.
First, other testimony and evidence presented by the State established that Appellant was present at the scene of the crime and that he was the shooter. Samuel White, an eyewitness who is also a retired deputy sheriff, testified that he saw a black male wearing dark clothing, who was at a minimum five feet tall and definitely not six feet, shooting into the victims’ car. Detective Michael Gibbons testified that of all the people arrested for the murders only Appellant matched White’s description of the shooter. Specifically, only Appellant is under six feet tall.
Furthermore, Harper also testified that when he ran into McKinney at the mall, McKinney was playing with and looking at his cell phone. The State introduced evidence, including subpoenaed phone records , of calls that occurred between Appellant and McKinney immediately prior to the shooting. Specifically, Detective Gibbons testified about two phone calls between Appellant and McKinney shortly before the shooting. He explained that the phone records showed a call between Appellant’s number and McKinney’s number at 1:20 p.m. lasting for two minutes and seventeen seconds and a second call at 1:24:30 p.m. lasting for one minute and twenty-four seconds. Detective Gibbons further testified that this last call occurred just two minutes before the first 911 call reporting the shooting, which was received at 1:28 p.m. We hold that the foregoing testimony tends to connect Appellant to the crimes for which he was convicted as it is sufficient to show not only that he was present at the scene of the crime, but also that he was the shooter.
Second, testimony was presented that Appellant asked a family member to lie to the police about his whereabouts the day of the shooting. This court has repeatedly held that false statements to the police may constitute corroborating evidence. MacKool v. State, 365 Ark. 416, 231 S.W.3d 676 (2006); McGehee v. State, 348 Ark. 395, 72 S.W.3d 867 (2002). Moreover, we have held that a family member’s testimony that be or she was asked to lie about an appellant’s whereabouts during the commission of a crime is sufficient to connect the appellant to the crimes as well as corroborate an accomplice’s testimony. See Green, 365 Ark. 478, 231 S.W.3d 638. We have further held that the jury is not required to lay aside its common sense in evaluating the ordinary affairs of life. MacKool, 365 Ark. 416, 231 S.W.3d 676.
Here, Felicia Taylor, Appellant’s aunt, testified that the day after the shooting, a Sunday, she received a phone call from the North Little Rock police department asking her to come down and talk to them. She explained that, prior to speaking with the police, she spoke to Appellant who told her that he had to go down to the police station as well. Shortly thereafter, Appellant asked her to tell the police that he had been with her from Friday night until late afternoon on Saturday. Taylor then testified that she went to the police department and gave a statement that Appellant had spent the nigbt at her house on Friday and that he was with her until she took him to his mother’s house around 4 p.m. on Saturday. She further testified that she lied to the police because she loves her nephew and he had asked her to do him a favor, but that after finding out that a double homicide had occurred she could no longer do so. Here, the jury may well have considered Taylor’s testimony as to lying at her nephew’s request to be corroborative of his guilt.
Finally, Harper testified that he and Lademon had stolen drugs, rims, and a box of pennies from Appellant’s home less than a week before the shooting. While not related to the actual shooting, the testimony can be linked to a motive for the shooting and is indicative of premeditation. Moreover, we have held that proof of ill will is sufficient to corroborate an accomplice’s testimony. See McGehee, 348 Ark. 395, 72 S.W.3d 867.
Based upon the foregoing, there is sufficient evidence, absent the accomplices’ testimony, connecting Appellant to the crimes such that the circuit court did not err in denying his motion for a directed verdict.
In accordance with Ark. Sup. Ct. R. 4-3(h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to Appellant, and no prejudicial error has been found. Nevertheless, we feel it necessary to briefly address an issue of concern discovered during our review of the record.
Prior to trial, Appellant filed a motion for recusal of the circuit judge based upon his attendance and prayer during a family hour for one of the victims. Specifically, Appellant argued that the circuit judge may have an interest in the case as well as that there is an appearance of bias. It is well settled that a judge shall avoid impropriety and the appearance ofimpropriety in all of the judge’s activities. Ark. Code Jud. Conduct Canon 2; Elmore v. State, 355 Ark. 620, 144 S.W.3d 278 (2004). Recusal is required when a judge’s impartiality might reasonably be questioned. Ark. Code Jud. Conduct Canon 3(E)(1); Barritt v. State, 372 Ark. 395, 277 S.W.3d 211 (2008). We have also held that the decision to recuse is within the circuit court’s discretion, and we will not reverse absent an abuse. Barritt, 372 Ark. 395, 277 S.W.3d 211. Moreover, the question of bias is usually confined to the conscience of the judge. Davis v. State, 367 Ark. 341, 240 S.W.3d 110 (2006).
In this case, the circuit judge explained that he did not know any of the victims or any of the defendants and that his prayer included a prayer for both the victims and the perpetrators of the crime. Thus, we are satisfied that there was no abuse of discretion in the circuit judge’s refusal to recuse.
Affirmed.
Rashon McKinney and Norman Dednam were also arrested and charged with the same crimes as Appellant.
Dednam had been offered a plea agreement by the State of thirty years’ imprisonment, which he rejected, and he testified against the advice of his lawyer while awaiting trial in his own case stemming from the shooting.
In exchange for his testimony, McKinney pled guilty to a charge of hindering apprehension and received a sentence of twenty years’ imprisonment. The two capital murder charges and the terroristic act charge were dropped against him.
Appellant’s name is not the name on the subscriber information for the cell-phone account, but rather it is his grandmother’s name. However, the phone number associated with the account is the one Appellant gave as part of his intake information. Consequently, the circuit court ruled that the number was admissible as Appellant’s. | [
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JIM HANNAH, Chief Justice.
This is one of seven aiteals filed by the State of Arkansas regarding the Phillips County Circuit Court’s dismissal of criminal charges filed against former members of the West Helena City Council. See also State v. Holden, 373 Ark. 5, 280 S.W.3d 23 (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). At issue is whether the circuit court erred in dismissing theft charges due to an allegedly defective arrest warrant. Appellee Clarence Richardson was charged with two counts of theft arising from his acceptance of money designated as salary or bonus payments related to his service as a member of the West Helena City Council. The State alleged that Richardson and other members of the City Council, upon learning that the present City Council would not become the City Council of the newly formed city of Helena-West Helena, met and voted to pay themselves and other elected officials for “one full year” of pay they would lose. The State contended that Richardson and the other elected officials committed theft by attempting to pay themselves for the year of their terms cut short by the vote to consolidate Helena and West Helena.
Richardson filed numerous motions to dismiss the charges against him, including one founded on the claim that the arrest warrant issued for him was defective. Specifically, Richardson alleged that the charges against him should be dismissed because, in violation of Ark. R. Crim. P. 7.1, ajudicial officer did not issue or authorize the circuit clerk’s issuance of the arrest warrant. After briefing by the parties and a hearing, the circuit court entered an order over the State’s objection dismissing the State’s charges due to a defective arrest warrant. The State timely filed a notice of appeal and lodged the record. The State seeks reversal and remand for trial on the theft charges. On appeal, the State argues that the circuit court erred as a matter of law by dismissing the State’s prosecution of Richardson due to an allegedly defective arrest warrant. We reverse and remand.
As this court has often held, the State’s ability to appeal is not a matter of right; rather, it is limited to those cases described under Ark. R. App. P.-Crim. 3. Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002). Under Rule 3, we accept appeals by the State when our holding would establish important precedent or would be important to the correct and uniform administration of the criminal law. Id. In this case, the issue raised by the State concerns whether the circuit court erred in dismissing a theft prosecution due to an allegedly defective arrest warrant. Because our holding in this case would be important to the correct and uniform administration of the criminal law, we accept jurisdiction of this appeal.
In this case, Richardson sought dismissal of the charges against him, alleging, inter alia, that the warrant for his arrest did not comply with Ark. R. Crim. P. 7.1(c). The State responded that, even assuming the warrant was defective, it had no effect on the prosecution so long as no evidence was obtained as a consequence of the arrest. At the hearing, the State reiterated that view, noting that Richardson was before the court not on the arrest warrant, but on the information filed against him.
An illegal arrest, without more, has never been viewed as either a bar to subsequent prosecution or an absolute argument against a valid conviction. Biggers v. State, 317 Ark. 414, 878 S.W.2d 717 (1994) (citing United States v. Crews, 445 U.S. 463 (1980)); see also Wallace v. State, 314 Ark. 247, 862 S.W.2d 235 (1993). 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. Biggers, supra; Wallace, supra; O’Riordan v. State, 281 Ark. 424, 665 S.W.2d 255 (1984). “The court’s jurisdiction to try the accused does not depend upon the validity of the arrest.” Singleton v. State, 256 Ark. 756, 757, 510 S.W.2d 283, 284 (1974).
In Daley v. State, 20 Ark. App. 127, 725 S.W.2d 574 (1987), the court of appeals addressed the specific issue of whether a defective arrest warrant under Ark. R. Crim. P. 7.1(c) required dismissal of a charge. The court of appeals stated:
We ... find no merit in the appellant’s argument that the charge against him should have been dismissed because a judicial officer did not issue or authorize the circuit clerk’s issuance of the arrest warrant. The warrant for the appellant’s arrest was issued by the Desha County Circuit Clerk’s office upon receiving the information in the mail. The clerk of that court testified that it was the normal procedure for his office to automatically issue a bench warrant whenever it received an information. While A. R. Cr. P. Rule 7.1(c) contemplates that a judicial officer issue an arrest warrant, or that the circuit clerk do so if authorized by a judicial officer, it is not necessary to our decision to reach the question of whether the procedure followed here renders such a warrant unlawful. Even were we to assume that this warrant was improperly issued, and the appellant’s subsequent arrest unlawful, that would not preclude the appellant’s trial for the offense charged.
The only purpose of an arrest warrant is to have an accused arrested and brought before the justice or other officer issuing the warrant so that he may be dealt with according to law. When that has been done, the warrant has performed its function and has no operation whatever on the subsequent proceedings. Duiney v. State, 136 Ark. 453, 206 S.W 898 (1918); Watson v. State, 29 Ark. 299 (1874). The appellant cannot challenge his own presence at trial or claim immunity to prosecution simply because his appearance was precipitated by an unlawful arrest.
Daley, 20 Ark. App. at 134-35, 725 S.W.2d at 578.
We agree with the reasoning of the court of appeals, as it comports with our case law regarding the effect of an illegal arrest upon a subsequent prosecution. See Biggers, supra; Wallace, supra; O’Riordan, supra; Singleton, supra. Accordingly, we hold that, in this case, the circuit court erred in dismissing theft charges due to an allegedly defective arrest warrant.
We note that, in dismissing the charges, the circuit court relied on Lamb v. State, 23 Ark. App. 115, 743 S.W.2d 399 (1988). However, Lamb is inapposite and does not stand for the proposition that a criminal prosecution can be dismissed due to a defective arrest warrant. While Lamb concerned the validity of an arrest warrant under Ark. R. Crim. P. 7.1(c), it said nothing about dismissal of a prosecution, but instead was an appeal following’ convictions and reached only the usual remedy of the suppression of evidence flowing from the illegal arrest. Id. at 118-20, 743 S.W.2d at 401-02.
For the foregoing reasons, we reverse and remand.
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Jim Hannah, Chief Justice.
James Hendrix, Jr. and Tanya Hendrix appeal an order of the Circuit Court of Montgomery County, Probate Division, denying their petition for grandparent visitation. The Hendrixes raise two points on appeal. First, they argue that the circuit court erred when it denied grandparent visitation rights. Second, they argue that the circuit court erred in refusing to grant a hearing on visitation. We hold that there is no error and affirm. Appellate jurisdiction lies in this court under Ark. Sup. Ct. R. 1 — 2(a)(1).
Facts
K.T. was born to Katie Natasha Black on June 4, 2002. K.T.’s putative father was Joshua Troy Hendrix. Katie and Joshua were never married. Joshua died on October 9, 2001. The record does not reveal that Joshua was ever aware of Katie’s pregnancy. Further, the record does not reveal that Joshua ever attempted to establish his paternity.
At some time prior to August 4, 2003, Katie married Matthew Black. On August 4, the Johnson County Circuit Court, Domestic Relations Division, granted Katie’s Petition for Paternity and entered ajudgment of paternity declaring Joshua to beK. T.’s father. On December 1, 2006, Katie and Matthew Black filed a petition in Montgomery County Circuit Court, Probate Division, in which Matthew sought to adopt K.T. That petition was granted on the day it was filed.
On February 13, 2007, the Hendrixes filed a petition to intervene in the probate proceedings. They sought to set aside the adoption and obtain a visitation order. The circuit court granted the motion to intervene, denied the petition to set aside the adoption, and found that the petition for visitation should have been filed in the Domestic Relations Division of the Montgomery County Circuit Court. The Hendrixes filed a timely notice of appeal.
Denial of Visitation
The Hendrixes assert that the circuit court erred in finding that because “the biological mother and not the deceased father proved paternity,” visitation could not be granted under Ark. Code Ann. § 9-9-215(a)(l) (Supp. 2005). Section 9-9-215(a)(l) permits a court to grant grandparent visitation to the biological grandparents whose legal relationship to the child is cut off by the adoption. However, certain requirements must be met. One requirement is that the putative father “legally established his paternity prior to the filing of a petition for adoption by a stepparent.” Id.
We do not reach the issue of error in denying visitation because the Hendrixes obtained no ruling on visitation. The circuit court stated in relevant part in the order as follows:
A. C. A. Section 9-9-215(a)(l) contemplates the possibility of visitation rights to parents of a deceased biological parent under these circumstances.... The Respondents may petition the Court with a new petition in the Domestic Relations Division.
The circuit court stated that the statute “contemplates the possibility of visitation” and the Hendrixes are instructed to file a “new petition in the Domestic Relations Division.” The circuit court also stated that the rights to visitation must be established in accordance with Ark. Code Ann. § 9-13-103 (Supp. 2005); however, this is not a decision on visitation but merely an affirmation of the circuit court’s belief that the petition had to be filed in the domestic relations division where that statute is typically applied and where decisions on visitation are typically made. Also, there is no ruling that the Hendrixes could not be granted visitation under Ark. Code Ann. § 9-9-215(a)(l). The failure to obtain a ruling precludes appellate review because there is no order of a lower court on the issue for this court to review on appeal. Baker v. Rogers, 368 Ark. 134, 243 S.W.3d 94 (2006).
Failure to Grant a Hearing
Alternatively, the Hendrixes argue that the circuit court erred in refusing to exercise jurisdiction and hear the issue of visitation under section 9-9-215(a)(l). The question raised is whether under amendment 80, the probate division of the circuit court, which had jurisdiction over the adoption, also had jurisdiction to hear the issue of visitation, which is an issue within the jurisdiction of the domestic relations division of the circuit court.
We are unable to address this issue because the Hendrixes do not develop this argument sufficiently to allow appellate review. The Hendrixes argue in their brief that the circuit court erred in trying to force them to file a petition in the domestic relations division and that no new petition was required. They provide in support of this argument a cite to amendment 80 to the Arkansas Constitution; however, there is no discussion of the application of amendment 80. They further argue that “the effect of the trial court’s ruling denies the deceased biological grandparents their day in court and flies in the face of a clear statutory duty to conduct a hearing.” There is no argument beyond that noted above. This court will not consider an argument, even a constitutional one, if the appellant makes no convincing argument or cites no authority to support it. See, e.g., Wooten v. State, 351 Ark. 241, 91 S.W.3d 63 (2002). Further, if appellant’s point is not apparent without further research, this court will not hear the matter. Id. We simply will not address issues on appeal that are not appropriately developed. Spears v. Spears, 339 Ark. 162, 3 S.W.3d 691 (1999).
Affirmed.
Intervention was granted because the court determined thatjames and Tanya should have but were not given notice of the adoption petition; however, the court concluded that they were not prejudiced by the failure to give notice. This decision is not appealed.
Arkansas Code Annotated section 9-9-215(a)(l) (Repl. 2008) concerns the effect of a decree of adoption. It provides in pertinent part that, although adoption cuts off all legal relationships with the biological relatives, where a biological parent dies before a petition for adoption has been filed by a stepparent, the court may grant visitation to the grandparents when certain requirements are met.
While this issue is couched in terms of amendment 80, it would necessarily include application ofArkansas Supreme Court Administrative Order 14, implementing amendment 80, as well as the local administrative plan created pursuant to Administrative Order 14, which provides for the assignment of cases filed in the circuit court, criminal, civil, juvenile, probate, and domestic relations divisions. | [
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Per Curiam.
Ledell Lee, by and through his attorney, Gerald Coleman, petitions this court to relieve Mr. Coleman as counsel, so that Lori Leon, counsel for Lee in a federal habeas case, may be appointed to represent Lee in this court. We must deny the petition, as Ms. Leon, an attorney in Kansas City, Missouri, has not filed a motion with this court requesting pro hac vice status or a motion to be appointed as counsel for Lee.
Petition denied. | [
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Per Curiam.
This is an appeal in an election case. On November 2, 2000, the Phillips County Circuit Court entered a declaratory judgment and mandamus that (1) declared the appellants, Don R. Etherly and Earnest Simes, to be ineligible as candidates for Justice of the Peace, District 5, Phillips County, and (2) ordered the Phillips County Election Commission “not to count any vote cast for the Defendants, Earnest Simes and Don Etherly, in the General Election to be held on Tuesday, November 7, 2000.” The appellants filed a notice of appeal on November 9, 2000, and then, on December 8, 2000, they filed a motion for stay, motion for expedited appeal and petition for writ of certiorari, prohibition, or mandamus.
On December 14, 2000, we granted the motion for expedited appeal, denied the motion for stay, and granted the petition for writ of certiorari. The writ of certiorari was issued, commanding the circuit clerk and court reporter to certify a full, true and complete transcript of the record to this court on or before January 13, 2001. The transcript was filed on January 11, 2001, and the appellants’ brief was due forty days from that date. Ark. Sup. Ct. R. 4-3 (b).
The appellants first received a seven-day clerk’s extension on February 14, 2001. Thereafter, this court granted extensions of time for filing the appellants’ brief (1) on February 26, 2001; (2) on April 17, 2001; (3) on May 2, 2001; (4) on May 16, 2001; (5) on June 18, 2001; (6) on July 3, 2001; and (7) on July 6, 2001. On July 6, 2001, we noted that this was the final extension and that the extended date for filing was July 9, 2001. No brief was filed by the appellants on that date.
On July 11, 2001, the appellants tendered an untimely motion that requested five additional days in which to file their brief, which would have extended the deadline to July 14, 2001. No extension was granted by this court, and no brief was tendered by that date. Approximately one month later, on August 10, 2001, the appellants filed a motion to file belated brief. The brief was finally tendered on August 20, 2001.
In sum, ten extensions have been requested by the appellants. Two extensions have been requested since the final extension granted by this court on July 6, 2001, and no approval of the untimely July 11, 2001 extension request has been forthcoming from this court. The appellants now request another extension in their motion to file belated.
As a consequence of the appellants’ delay in filing their brief, separate appellee Charles Deaton filed a motion to dismiss this appeal on August 13, 2001. Separate appellees Phillips County Board of Election Commissioners and Joann Smith, Maxie Miller, and Joe Howe, members of the Phillips County Board of Election Commissioners, filed a response to Mr. Deaton’s motion to dismiss on August 17, 2001, which also seeks to have this appeal dismissed.
It is clear to this court that the appellants have not acted responsibly or with due diligence in this election matter. The appellants’ attorney, J.E Valley, states that “due to deaths in his family, scheduling and computer problems, along with a significantly laden law practice,” he was unable to file a brief in a timely manner. We note, nonetheless, that this is an election case and prompt consideration is often important in such matters. State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989). To ensure prompt consideration of such cases at the trial level, we adopted Ark. R. Civ. P. 78(d) in 1995 to add the following requirement:
Upon the filing of a petition for writs of mandamus or prohibition in election matters, it shall be the mandatory duty of the judge or chancellor having jurisdiction to fix and announce a day of court to be held no sooner than two (2) and no longer than seven (7) days thereafter to hear and determine the cause.
This court has concluded “that the abbreviated procedure ... is necessary in election matters because of their urgency.” Ark. R. Civ. P. 78(d), Court’s Notes, 1995 Amendment. In the same vein, Rule 4 of the Appellate Rules of Procedure — Civil was amended in 2000 to provide that a statutory deadline for election cases is controlling as to the timeliness of an appeal, notwithstanding the 30-day period generally applicable under that rule:
(c) Exception for election cases. If a statute of this State pertaining to elections prescribes a time period for taking an appeal, the period so prescribed shall apply in any case subject to the statute.
See Citizens for a Safer Carroll County v. Epley, 338 Ark. 61, 991 S.W.2d 562 (1999) (applying Ark. Code Ann. § 3-8-205(a)(1)(Repl. 1996), which provides for a ten-day period in which to file a notice of appeal in cases involving the sufficiency of petitions in local option elections); Weems v. Garth, 338 Ark. 437, 993 S.W.2d 926 (1999) (applying Ark. Code Ann. § 7-5-810 (Repl. 2000), which imposes a seven-day limit for an appeal from a circuit court in an election contest.)
In order to ensure the prompt consideration of election cases at the appellate level, this court has granted expedited appeals in such matters. Thus, we granted the appellants’ motion for expedited appeal, which requested that this court “decide the merits of this matter without delay.” Over the course of six months, we granted the appellants eight extensions of time in which to file their brief, with a final deadline of July 9, 2001. The appellants’ brief was not filed by that date. In fact, their brief was not tendered until August 20, 2001, or forty-two days after the final deadline.
In State v. Parkman, 325 Ark. 35, 923 S.W.2d 281 (1996), where the State had obtained nine extensions in which to file its brief in a State appeal, this court issued a warning:
Henceforth, we will not entertain appeals by the State when the State’s brief is not filed in accordance with the specified deadline in the final extension granted by this court.
325 Ark. at 36, 923 S.W.2d at 282. Not only was the State’s appeal in Parkman dismissed, but the State’s appeal in another case was also dismissed because the State’s brief had not been filed by the final extension date after the court granted the State six extensions of time in which to file its brief. State v. Tien, 326 Ark. 71, 929 S.W.2d 155 (1996); supplemental opinion denying rehearing, 326 Ark. 583, 933 S.W.2d 369 (1996).
We conclude that our clear directive in Parkman is equally applicable and necessary in expedited- appeals in election cases because of their urgency. We will not entertain expedited appeals in election cases when the appellant’s brief is not filed in accordance with the specified deadline in the final extension granted by this court. In the instant expedited appeal of an election case, the extension granted on July 6, 2001, was designated a final extension and required that the appellants’ brief be filed by July 9, 2001. The appellants’ brief was not filed by that deadline. Accordingly, we deny the appellants’ motion to file belated brief and dismiss this appeal. A copy of this per curiam will be forwarded to the Committee on Professional Conduct. | [
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Wood, J.,
(after stating the facts.) First. Under a deed conveying all the merchantable standing timber of a certain description, which specifies no time for its removal, the grantee has a'reason'ablé time for such removal. Carson v. Lumber Co., 108 Tenn. 681; McRae v. Stillwell, 111 Ga. 65; Hill v. Hill, 113 Mass. 103. An estate in the timber necessarily includes the irrevocable right to enter upon the land for the removal of such timber. 2 Pars. Cont. 534. The weight of authority is, we believe, that, where no time is specified, this right exists only for a reasonable time. See cases cited supra and authorities therein collected; also Patterson v. Graham, 164 Pa. St. 234; Manufacturing Co. v. Hobb, 128 N. C. 46; 28 Am. & Eng Enc. Law (2 Ed.), 543, par. 4. Some authorities hold that a deed to standing timber which specifies no time for its removal conveys to the grantee an estate in the timber which runs with the land, and goes on forever.; but that the right to enter upon the latid for removing the timber exists for only a reasonable time after the execution of the deed, and that, if the grantee thereafter enters upon the land to remove his own timber, he will be guilty of trespass. Hoit v. Stratton Mills, 54 N. H. 452; Boults v. Mitchell, 15 Pa. St. 371; Magnetic Ore Co. v. Marbury Lumber Co., 27 L. R. A. 434. This doctrine, it seems to us, involves some anomalies, if not contradictions, in the law. Suffice it to say, on this point we approve the rule announced in the well-considered opinion of the Supreme Court of Georgia, supra. In the absence of something in the instrument itself, or in the proof aliunde, showing a contrary intention, a deed to standing merchantable timber which specifies no time for its removal conveys a terminable estate in the timber, which ends when a reasonable time for the removal of such timber, after the execution of the deed, has expired. McRae v. Stilwell, supra. There is nothing in Kendall v. J. J. Porter Lumber Co., 69 Ark. 442, or McLeod v. Dial, 63 Ark. 10, to conflict with this view. The question here considered was not involved in those cases.
The implication of reasonable time only being granted to'the grantee where no time is specified is a construction placed upon such deeds for the benefit of the grantor and his ■ success sors in title, and they may wáive the forfeiture of the right' to enter on the part of the grantee, and may by writing dr párdl extend the time for the cutting and removal before dr after the reasonable time has expired. " ‘ • • • ■ •
What is a reasonable time is generally a mixed question of law and fact. The facts are to be ascertained by an inquiry into the conditions of the land and timber, the obstacles opposing and the facilities favoring, and the conditions surrounding the parties at the time the contract was made. When all the circumstances are considered, and the facts are determined, the law will declare whether reasonable time has expired for cutting and removing the timber conveyed. Carson v. Lumber Co., 108 Tenn., supra. No fixed rules can be established for ascertaining what is a reasonable time. The facts and circumstances of each particular case must determine this.
The term “merchantable” means “fit for market;” of such a quality as will bring the ordinary market price.” Webster’s Diet.; Black’s Law Diet. The term, as used in the deed, ha3 reference to such timber as would bring the ordinary market price at the time the deed was executed. It was used to describe the timber mentioned with reference to conditions then existing, and not to future conditions. Andrews v. Wade, 6 Atl. Rep. 48.
The above are the principles of law applicable to the case.
Second. Applying these principles to the facts in the record, was the decree of the court correct? 1. The finding “that the defendant owned all the cottonwood, ash, and. cypress timber standing and growing on section 34 that was merchantable in April, 1898,” was a legal conclusion, and could only be correct upon the theory that a reasonable time had not expired, when appellants brought suit, for the appellee to have cut and removed the timber mentioned.' Without discussing the evidence in detail, after a careful review of it, we are not prepared to say that a reasonable time had elapsed for appellee to have cut and removed the timber. The deed under which appellants claim was executed in November, 1902. The deed to their grantor Davis was executed in 1900, and this deed recited that the conveyance was “subject to the timber deed to Carleton.” It thus appears that the grantors of appellants expressly .recognized the rights of appellees’ grantor in the timber at the time they executed their deeds. Making the deeds under which appellants claim subject to the timber rights of appellees’ grantor showed that at the time these deeds were executed no advantage was taken by appellants’ grantors of the time that had elapsed since the making of the first timber deed to Carleton in 1898. ' If there had been any forfeiture of the right to enter, appellants’ grantors had thus expressly waived it by making their deed to appellants subject to the timber deed under which appellee claims. In determining therefore what is a reasonable time in favor of appellants and against appellee, no account should be taken of the time that had elapsed between 1898, when the deed was made to Carleton, and 1900, when appellants’ grantor, Davis, received his deed. This being true, there is ample evidence to justify the conclusion that a reasonable time had not expired for appellee to have entered and removed the timber when this suit was instituted in 1903; at least, such finding would not be clearly against the weight of evidence.
2. The finding “that all of the timber less than eighteen inches in diameter at the stump was not merchantable in the month of April, 1898, and is the property of plaintiffs,” even if erroneous, was favorable to appellants; but such finding is not clearly against a preponderance of the testimony.
3. The finding “that all the timber cut by defendant, whether removed or not, was merchantable timber” is abstract.
We have not been able to find from the record whether the timber that had been cut by appellee when the suit was brought was merchantable or not. If it was under eighteen inches in diameter, then, according to the court’s other findings, it would not be merchantable, and the two findings would then be inconsistent. But, so far as we have been able to discover, the evidence is silent as to the size of the timber cut prior to the bringing of the suit. The finding that defendant had a right to enter upon the land and remove the timber, and to cut and remove all timber not less than eighteen inches at the stump,” was correct, in view of the fact that a reasonable time had not expired for cutting and removing the timber, under the proof, that timber under eighteen inches at the stump, of the kinds named, was not merchantable. But the decree ordering the land and timber to be sold, and directing how the proceeds should be divided, is erroneous. It does not conform to the issues raised, or the relief prayed for in the complaint or answer, nor' to any relief proper, under a general prayer, upon the pleadings and proof in the case.
-The decree doubtless commended itself to the court as the quickest and best method of winding up the troublesome controversy between the parties litigant, but neither were appellants, nor was appellee, asking for a sale - of the land and timber. Partition was not sought, and was not proper, and a sale was wholly unnecessary.
In all other respects the findings of the court are affirmed;' but for this error the decree of the court is reversed, and the cause is remanded for such other and further proceedings according to - the principles herein announced as may be necessary to preserve-the rights of the parties. | [
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McCulloch, J.
The only question raised by this appeal is whether a foreign corporation doing business in this State can recover upon a contract made by it without having complied with the statute requiring that such corporations, before attempting to do business in the State, shall file with the Secretary of State and county clerk a certified copy of their articles of incorporation.
Kirby’s Digest, § § 825, 826, 827, 828, 829, and 830, provide that a foreign corporation shall, before doing business in the State, file in the office of the Secretary of State a copy of its charter and a certificate designating an agent upon whom process may be served, and declare that, if any corporation shall fail to comply with the statute, it shall be subject to fine, and that no suit can be maintained to enforce its demands.
Appellee complied with this statute before entering into the contract sued on.
The Legislature enacted a statute May 23, 1901 (Kirby’s Digest, § § 832, 833), section one of which provides that a foreign corporation, before it shall be authorized or permitted to establish or continue its business in this State, shall file with the Secretary of State and county clerk a copy of its articles and a statement of the proportional part of capital stock in its business in the State and county. The second section of said act is as follows:
“That no corporation formed or organized in another State, territory, county or country, shall be authorized or entitled to make any contract in this State until it has complied with the provisions of the foregoing section, nor shall it be authorized to sue on any contract made in this State until the provisions of section one (1) of this act are complied with; provided, that corporations now doing business in this State may'have sixty (60) days to comply with this act.”
This act was not complied with until after the commencement of this suit to enforce the contract, which was entered into on March 8, 1902.
In the two cases of Buffalo Zinc & Copper Co. v. Crump, 70 Ark. 525, and Sutherland Co. v. Chaney, 72 Ark. 327, it was held that a foreign corporation which complied with the first named statute after it had commenced an action was entitled thereafter to maintain it. In each of those cases the contract sued on was entered into prior to the enactment of the first-named statute (February 16, 1899), and the suit commenced after its enactment.
In the case first cited above, the court said: “The penalties of the act in question are, doubtless, intended to compel an observance of its terms. When that is done, its purpose is accomplished, the condition upon which the right to maintain an ’action depends is performed, and the plaintiff can in the future prosecute it to a final judgment.”
It will be observed that there is a substantial difference between the provisions of these two statutes. In addition to requiring, as a prerequisite to doing business in the State, the performance of entirely different acts on the part of the corporations, the first-named statute expressly provides that in the event of failure to comply therewith it shall be subject to fine of $1,000. It is noteworthy also that a prior statute on the subject (act of April 4, 1887) provided that in the event of a failure of a corporation to comply with its provisions all contracts made with citizens of the State shall be void. The statute now under consideration contains no such provision. It merely declares that “no foreign corporation shall be authorized or entitled to make any contract in this State, nor to sue on any contract made in this State, until it has complied with the foregoing section.”
Prof. Beale in his late work on Foreign Corporations (sec. 213) says: “The weight of authority supports the view that contracts made by foreign corporations within the State before compliance with the statute are not void, and that suit may be brought upon them either by the other party or (after compliance, if that is, as often happens, made a condition of suing) by the corporation.” While there is much conflict in the authorities, they seem to sustain the statement of the author. Wright v. Lee, 2 S. D. 596; Security Savings & L. Co. v. Elbert, 153 Ind. 198; Neuchatel Asphalte Co. v. Mayor, etc., 155 N. Y. 373; Enterprise Brewing Co. v. Grime, 173 Mass. 252; People v. Hawkins, 106 Mich. 479; Blodgett v. Lanyon Zinc Co., 120 Fed. 893; Alleghaney Co. v. Allen, 69 N. J. L. 270.
The New Jersey Court of Errors and Appeals in the case cited above said: “The tendency of judicial decisions on this subject, where the statute does not declare the contract to be void, is to a strict construction, maintaining the validity of the contract and holding that the only effect of such legislation in the State where it is enacted is to impose the prescribed penalties and the expressed disability.”
This court, in the case of State Mutual Ins. Assn. v. Brinkley Stave Co., 61 Ark. 1, held that the contract of a foreign insurance company which had not complied with the requirements upon which such corporations could do business in the State was not void, for the reason that the statute did not in terms declare such contracts to be void. That decision seems conclusive of this case. The only distinction between the two cases is that the insurance statute imposes a penalty for'doing business in the State without having complied with its terms, whilst the statute under consideration imposes no penalty- further than to declare that no suit may be maintained by the corporation until the terms of the statute be complied with. We do not think this alters the rule. The statute does plainly prohibit the maintenance of a suit until its terms are complied with, and, in the absence of a provision expressly declaring the contract to be void, we do not feel at liberty to say that the Legislature intended to fix the latter penalty. If it had been intended to declare the contract absolutely void and of no effect, the further provision that no suit should be maintained thereon was superfluous. Learned counsel for appellant contend that the latter provision was, however, intended to apply only to contracts made before the passage of the statute, so as to enable the corporation to qualify itself to enforce valid contracts entered into before its passage. We do not agree with them that the provision is so limited in its operation. It manifestly and in express terms applies to “any contract made in this State.”
We, therefore, hold that' a contract made by a foreign corporation before compliance with the terms of the statute is nor void, but may be enforced in-the courts of the State after it has duly complied with the statutory requirements.
Judgment affirmed. | [
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Riddick, J.
This is an appeal- from a judgment convicting Arthur Velvin of the crime of voluntary manslaughter, and sentencing him to seven years imprisonment in the penitentiary for killing W. G. Smith by shooting him with a 'gun. ' 'Smith-' attached a crop of a negro tenant in which a brother of'Velvin, who had been recently killed in Texas, had some interest. The defendant, Arthur Velvin, went to the home of Smith, as he says, to settle the matter in some way. The evidence shows that there was some ill feeling between the two parties, and Velvin took with him a Winchester repeating shotgun loaded with buckshot. He found Smith in a field something over a hundred yards from his home, gathering peas. His wife and young son were with him. The wife of Smith testified that when the defendant came up to them he had his gun in his hand, and w-as only ten or fifteen steps away when the}'- noticed him. Smith was down on his knees, picking peas, and Velvin said to him, “Get up, you damned old son-of-a-bitch! I have got you!” She stepped between them, and asked Velvin to let him alone. Defendant said to her: “Stand back, God damn you, or I will- kill you!” Smith then started to run towards his house. Velvin followed him a short distance, and ordered him to stop, and when he did not do so shot him. The testimony of the boy was substantially the same as that of his mother. He testified that the first words of Velvin to Smith were: “Get up from there, you damned old son-of-a-bitch! I have got you, and am going to kill you!” That his father ran, and was shot down. On the other hand, Velvin testified that he did not go to the field to hurt Smith, and did not take the gun with that intention, but only intended to talk with him in an effort to make some arrangement by which the attached crop might be gathered. He testified that he got over the fence into the pea patch a short distance from Smith; that he had only taken a step or two towards him when Mrs. Smith began to scream; that the boy ran towards the house for a gun ; that he told Smith not to.run, that he wished to talk with him, but that Smith ran to the road, and toward the house, calling for his gun; that defendant followed after him, telling him to stop, until he saw the daughter of Smith coming from the house towards her father with a Winchester rifle, when the defendant shot Smith, intending to shoot him in the legs to prevent his getting the gun from his daughter.
There was other testimony tending to show that at the time the shot was fired the daughter of Smith was coming towards him with a rifle, and testimony tending to show that she had no sum. and that this statement of the defendant was not true.
A number of exceptions were saved on the trial, but the only ground of reversal urged in brief of counsel is that the court erred in giving instruction number fifteen at the request of the State. It is contended that the evidence does not show that the defendant made any assault on Smith previous to the shooting, and that there was no evidence upon which to base that instruction, and that it was misleading.
But there was evidence tending to show that Velvin with a loaded gun in his hand came to the field where Smith was at work, and used threatening language toward him such as might well have put a reasonable person in the same situation in fear of his life. Smith was on his own premises, and, being put in fear in that way, he had the right to secure means of protecting himself. His going towards his house and calling for a gun under those circumstances did not, to quote the language of this instruction, justify the defendant in taking his life “unless the defendant in good faith had abandoned the difficulty, and had done all within his power,, and consistent with his safety, acting as a reasonable person, to avert the danger to himself and avoid the necessity of killing the deceased.”
It was immaterial whether defendant had committed a technical assault on Smith or not. In that respect the instruction is too favorable to defendant. If he wrongfully put Smith in fear of his life, defendant had no right to shoot him down, because he was endeavoring to obtain a weapon by which to protect him self until, the defendant had in good faith abandoned the quarrel and done all in his power, consistent with safety, to avoid the necessity of the killing. As applied- to the facts in this case, the instruction may be subject to some criticism; for it might well have omitted any reference to an assault, and told the jury that if the defendant came to the field of the 'deceased with a gun, and by the use of threatening language put deceased in fear of his life, he had no right to shoot the deceased until he had used all means within his power, consistent with safety, to avoid the danger and avert the necessity of taking life. But when this instruction is read in the light of the evidence, with the fifth and sixth instructions given for defendant, it is very clear that it could not have misled the jury to the injury of the defendant.
The evidence of defendant’s guilt is clear and convincing, and would have sustained a verdict for a greater crime. On the whole case, we are of the opinion that the judgment should be affirmed. It is so ordered.
“15. You are instructed if you believe from the evidence in this case beyond a reasonable doubt that the defendant, on the evening of the killing, went to'where the deceased was at work in his pea patch, and, without provocation at the time on the part of the deceased, assaulted the deceased with a shotgun in a violent and threatening manner, such as would put a reasonable man in the situation of the deceased in fear of losing his life or of receiving great bodily injury, and that the deceased was aroused to such sense of fear by said assault, then the deceased had a right to seek assistance of weapons with which to defend himself, and the fact that he called for some one to bring him a gun, or attempted to run to his house for the purpose of procuring a gun with which to shoot the defendant, would not justify the defendant in taking the life of the deceased unless the defendant had abandoned in good faith the difficulty, and had done all within his power, and consistent with his safety, acting as a reasonable person, to avert danger to himself and avoid the necessity of killing the deceased.”
“5. The court instructs the jury that if you believe from the evidence in this case that the defendant, Velvin, went to the house of the deceased, Smith, for the sole purpose of adjusting and settling a business matter in which both were interested," and with no purpose of killing deceased, and that when defendant arrived the deceased called for his gun, and that a Winchester rifle was being brought to him, the -deceased at the time running to the party bringing said gun, and at that time it appeared to defendant as a reasonable person that he was in danger of receiving great bodily harm or of losing his life, he had a fight to defend himself then and there, and was not required to wait until deceased reached his gun and turned upon him.”
“6. The court instructs the jury that if you find from the evidence that at the time the defendant first fired the shot that killed the deceased it appeared to him, acting as a reasonable person, without fault or carelessness on his part, that the danger at that time to him was so urgent and pressing that it was necessary to kill the deceased to save his own life to prevent his receiving great bodily injuries, and that he acted in good faith, then you must acquit the defendant, though the jury may believe that it was not necessary for the defeiidant to have fired the shot.” | [
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Wood, J.
The appellant was convicted of an assault with intent to kill, and sentenced to one year in the penitentiary. The indictment charged that appellant made the assault “unlawfully, willfully, feloniously, and with malice aforethought with the felonious intent to kill and murder.” That was sufficient. Dillard v. State, 65 Ark. 404.
The instruction which gave the jury the maximum punishment to be assessed in case of conviction, but which failed to name the minimum punishment, was not prejudicial, since the jury assessed the lowest punishment.
There was no error in the law of the case as given by the court, and the proof was ample to sustain the verdict.
Affirm. | [
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Riddick, J.,
(after stating the facts.) This is an appeal by the defendant from the judgment against him for balance due for the price of hay sold him by plaintiff. The evidence tends very strongly to show that the hay was of an inferior quality, but there is conflict in the evidence on that point, and we see no reason for disturbing the judgment on that ground.
The court, we think, did not err in refusing to allow the defendant to exhibit to the jury two bales of the hay which defendant claimed was a part of the carload of the hay he had sold to Fagan & Underwood of Stuttgart, and shipped by them to a customer at England who had returned these two bales to Fagan & Underwood as samples of the hay. This carload was not shipped from Stuttgart, but from Roe, Arkansas, where it was delivered by plaintiff. Underwood, who testifies as a witness, does not say that he had ever seen the hay before it was shipped to his customer at England. This customer at England testified in his deposition that he returned “samples” of the hay by freight to Underwood, but he does not describe these samples, or say whether he returned as much as two bales or not. The hay was not received by Underwood direct from the railway company but by a public drayman. This drayman did not testify; and as Underwood had never seen the hay before, and did not of his own knowledge know from whom the drayman received it, he could not identify these two bales of hay as the “samples” which the deposition of the customer at England showed had been returned, or as a part of the same hay which he had purchased from Whaley. The contention of appellant on this- point must be overruled.
The only remaining point urged here is that the closing argument of counsel for plaintiff was improper and prejudicial. We have no doubt that the remarks complained of were intended by counsel who made them as a piece of harmless pleasantry, but, as it was- in the nature of an appeal to class prejudice, it was, in the opinion of a majority of us, improper, and the objection thereto, if properly made, should have been sustained by the court. Rochester School Town v. Shaw, 100 Ind. 268; 2 Enc. Plead. & Prac. 742.
But the general rule is that, in order to make such an objection available in the appellate court, there must first be a ruling or a refusal to rule by the trial court. 2 Cyc. 711-713. “In order that a party may avail himself in an appellate court of an objection for misconduct of opposing counsel in the argument of a case, he must not only interpose a seasonable objection, as has just been stated, but he must then press the court for a distinct ruling, and, if dissatisfied therewith, enter an exception; otherwise there is nothing presented for review.” 2 Am. & Eng. Enc. Law, 755; Lunsford v. Dietrich, 93 Ala. 565. This rule has been adopted by this court with possibly an exception in those cases where the remarks of counsel are so obviously prejudicial that no reprimand or action on the part of the court can cure the error. Kansas City Sou. Ry. Co. v. Murphy, 74 Ark. 256. But the remarks complained of here were not of that kind; and, in order to make the point available here, some ruling by the trial court should have been made or demanded by counsel; but the bill of exceptions does not show that. Its language on this point is that “the defendant objected to the above language, and asked that his exceptions be noted of record.” This shows neither a ruling nor a refusal to rule on the part of the trial judge, and brings nothing before us for review.
The instructions given by the court were as, favorable tq the defendant as the law would permit, No objections were made to. them, and, finding no reversible error, the judgment is affirmed. | [
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