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JIM HANNAH, Chief Justice.
Appellants, Thomas G. Carmody and Dr. Norman C. Savers, Jr., as co-administrators on behalf of the Estate of Helen Virginia Coan, deceased, and on behalf of the heirs of Helen Virginia Coan, appeal the probate order compelling arbitration issued by the Ouachita County Circuit Court. We affirm.
On March 8, 1977, Joseph Coan, by order of the Ouachita County Probate Court, was appointed as guardian of the person and the estate of Helen Virginia Coan (“HVC”). On November 19, 1985, after Joseph’s death, Linnie Betts was appointed as the guardian of the person and the estate of HVC. On the same day, a Letter of Guardianship of the Person and the Estate in Succession were issued.
Betts, as guardian, petitioned the probate court on numerous occasions, requesting the court’s approval for various actions, and the probate court granted her petitions. On June 27, 1996, Betts, as guardian for HVC, executed an agreement with Raymond James & Associates, Inc., authorizing the transfer of securities from a Stephens Inc. account to a Raymond James account. On the same date, Betts, as guardian of HVC, executed a New Account Form with Robert Thomas Securities, Inc., a subsidiary of Raymond James Financial, Inc. The New Account Form contained a Client Agreement, which included an arbitration agreement.
On October 30, 1997, Betts petitioned the court for authorization “to transfer all stocks owned by [HVC] to Raymond James & Associates, Inc., for deposit in the name of Linnie Betts, Guardian of the person and estate of Helen Virginia Coan.” The probate court authorized the transfer, and on various dates thereafter, the court entered orders authorizing Betts to transfer stock for deposit in Raymond James, to sell stock held by Raymond James for the benefit of HVC, to re-register stock in the name of Raymond James to be held in the guardianship account, and to invest in certain specified funds as advised by Raymond James. On January 15, 2002, Betts, as guardian of HVC, executed a New Account Form with Raymond James Financial Services, Inc. This New Account Form contained a Client Agreement, which included an arbitration agreement.
When HVC died, Betts was appointed as co-administrator of HVC’s estate. On March 13, 2006, the probate court ordered the appointment of Norman Savers and Tom Carmody as co-administrators of the Estate of HVC. The appointment was accepted and the Letters of Administration were issued on the same date. Subsequently, in an order entered on June 2, 2006, Betts was removed as co-administrator.
On November 2, 2006, the Estate of HVC, through its administrators, and the heirs of HVC filed suit against various defendants, including appellee Raymond James Financial Services, Inc. (“Raymond James”), alleging that HVC funds were commingled with the funds of another estate. Subsequently, on December 4, 2006, Raymond James filed a Motion to Stay Litigation and Compel Arbitration. HVC’s estate opposed the motion. Following a hearing held on March 12, 2007, the court entered an order staying litigation against Raymond James and compelling arbitration.
The circuit court found that the arbitration agreements contained in the client agreements did not violate Ark. Code Ann. §§ 28-65-301 (a)(3) and 28-65-302(a)(l)(G) (Repl. 2004). Further, the court found that arbitration agreements did not violate the public policy of Arkansas. Finally, the court concluded that the agreements were binding and enforceable on the petitioners who asserted claims derivative of the FIVC estate.
The estate of HVC now brings this appeal, arguing that the circuit court erred in granting Raymond James’s motion to compel arbitration because Ark. Code Ann. §§ 28-65-301 (a)(3) and 28-65-302(a)(l)(G) required probate court approval of the binding arbitration agreement. HVC’s estate thus claims that, absent the court’s prior approval of an arbitration agreement, the agreement is unenforceable. In addition, HVC’s estate argues that a contract agreeing to a binding arbitration of an incapacitated person’s claims without court approval violates public policy.
As an initial matter, we note that Raymond James has filed a motion to dismiss appeal. Raymond James argues that this court does not have jurisdiction to entertain this appeal because the circuit court’s order compelling arbitration is not appealable. Pursuant to the Uniform Arbitration Act, an appeal may be taken from an order denying an application to compel arbitration made under Ark. Code Ann. § 16-108-202 or an order granting an application to stay arbitration made under Ark. Code Ann. § 16-108-202(b). See Ark. Code Ann. § 16-108-219 (Repl. 2006). However, this court has held that an order compelling arbitration is not appealable. See England v. Dean Witter Reynolds, Inc., 306 Ark. 225, 811 S.W.2d 313 (1991); Chem-Ash, Inc. v. Ark. Power & Light, 296 Ark. 83, 751 S.W.2d 353 (1988).
HVC’s estate argues that the order compelling arbitration is appealable pursuant to Ark. R. App. P. — Civ. 2(a)(12), which provides in relevant part that, under Ark. Code Ann. § 28-1-116, all probate orders are appealable, except an order removing a fiduciary for failure to give a new bond or render an accounting required by the court or an order appointing a special administrator. Raymond James responds that the order of the circuit court compelling arbitration is not “an order. . . under the provisions of the Probate Code” as required by Ark. Code Ann. § 28-l-116(a) (Repl. 2004). Rather, Raymond James argues that the order staying the litigation and compelling arbitration is an order under the provisions of the Federal Arbitration Act, 9 U.S.C.A. § 2 (1999). Thus, Raymond James argues that Rule 2(a)(12) is inapplicable. We disagree. Given that the order compelling arbitration included findings regarding probate matters, we conclude that the order is appealable under Rule 2(a)(12), and the motion to dismiss appeal is denied. Therefore, we will proceed with the appeal.
We review probate proceedings de novo and we will not reverse the decision of the probate court unless it is clearly erroneous. In re Estate of Keathley, 367 Ark. 568, 242 S.W.3d 223 (2006). Similarly, we review issues of statutory construction de novo as it is for this court to decide what a statute means. Stephens v. Ark. Sch.for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000). 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.
The basic rule of statutory interpretation is to give effect to the intent of the General Assembly. Martin v. Pierce, 370 Ark. 53, 257 S.W.3d 82 (2007). 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.
HVC’s estate argues that Ark. Code Ann. §§ 28-65-301(a)(3) and 28-65-302(a)(l)(G) (Repl. 2004) require reversal in this case. We begin by noting that a “ ‘[g]uardian’ is one appointed by a court to have the care and custody of the person or of the estate, or ofboth, of an incapacitated person.” Ark. Code Ann. § 28-65-101(3) (Repl. 2004). Section 28-65-301(a)(3) (Repl. 2004) provides that “[t]he guardian of the person shall be entitled to the custody of the ward but shall not have the power to bind the ward or his or her property.” Raymond James argues here, as it did below, that Ark. Code Ann. § 28-65-301 (a)(3) did not limit Betts’s authority to bind FIVC’s property because the statute means that a guardian who is a guardian of the person only does not have authority over the ward’s property. Raymond James states that, because Betts was not merely the guardian of the person of FIVC, but rather the guardian of the person and of the estate of HVC, § 28-65-301 (a)(3) is simply inapplicable to the instant case. Raymond James avers that the broader provision found in § 28-65-301 (b) (Repl. 2004) is applicable. Section 28-65-301 (b) (Repl. 2004) provides in relevant part:
(b)(1) It shall be the duty of the guardian of the estate:
(A) To exercise due care to protect and preserve it;
(B) To invest it and apply it as provided in this chapter;
(C) To account for it faithfully;
(D) To perform all other duties required of him or her by law; and
(E) At the termination of the guardianship, to deliver the assets of the ward to the persons entitled to them.
(Emphasis added.)
Raymond James’s argument is well taken. The circuit court found:
Petitioners further contend that Betts, as guardian, did not have the power to bind the assets of the incompetent. Petitioners refer specifically to Ark. Code Ann. § 28-65-301(a)(3) as the basis for the asserted hmitation placed upon the guardian. However, it is clear that the language that denies a guardian power to bind the ward’s property refers to a guardian of the person only. Ark. Code Ann. § 28-65-301 (b) (1) outlines the duties of the guardian of the estate, which includes the duty to invest the assets of the ward and to perform all other duties required by law.
The circuit court’s findings are not clearly erroneous. The plain language of Ark. Code Ann. § 28-65-301 (a)(3) indicates that the guardian of the person does not have the authority to bind the ward or his property. It does not state that the guardian of the estate lacks this authority. Further, as determined by the circuit court, Ark. Code Ann. § 28-65-301 (b)(1) provides, in part, that the guardian of the estate has the duty to invest the assets of the ward. Accordingly, we hold that the circuit court did not err in its statutory interpretation of Ark. Code Ann. § 28-65-301(a)(3).
HVC’s estate next argues that Betts, as guardian of HVC, entered into a binding arbitration agreement in violation of Ark. Code Ann. § 28-65-302(a)(l)(G), which provides:
(a)(1) No guardian appointed prior to October 1, 2001, shall make any of the following decisions without fifing a petition and receiving express court approval:
(G) Consent to a settlement or compromise of any claim by or against the incapacitated person or his or her estate.
HVC’s estate claims that Betts was required to obtain specific judicial approval prior to entering an agreement that contained an arbitration agreement because an agreement to arbitrate is the same as a consent to compromise or settle. In support of its argument, HVC’s estate cites the following definition of “compromise” from Black’s Law Dictionary:
An agreement between two or more persons to setde matters in dispute between them; an agreement for the settlement of a real or supposed claim in which each party surrenders something in concession to the other. — Also termed compromise and settlement[.]
Black’s Law Dictionary 305 (8th ed. 2004).
Raymond James contends that the clear import of § 28-65-302(a)(1)(G) is that claims by or against a guardian, once they arise, must be taken to the probate court for approval before being finally settled. By way of explanation, Raymond James states that, likewise, if the parties were to reach a settlement before the case was submitted for a final determination of the arbitrator, then that settlement would be submitted to the probate court for approval, but that is not the case here. Raymond James states that an agreement to arbitrate is an agreement to submit future, potential, but not yet real or realized, claims to a particular type of adjudicative forum. Further, Raymond James states that an agreement to arbitrate future claims is not an agreement to settle a matter already in dispute.
With respect to this argument, the circuit court made the following findings:
Actions of a guardian of a person and estate requiring specific court approval are identified in Ark. Code Ann. § 28-65-302. Of concern to petitioners is Ark. Code Ann. § 28-65-302(a)(l)(G), which requires court approval for a guardian to obtain consent to a setdement or compromise of any claim by or against the incapacitated person or his or her estate. The opening of the investment accounts specifically authorized by the Probate Court and the signing of the contracts, which would include arbitration provisions, are not to be considered actions by the guardian that would be outside of the scope of the guardian’s inherent authority. These acts are not tantamount to a settlement or compromise of a claim on behalf of a guardianship.
By signing the contracts, which included arbitration agreements, Betts, as guardian, did not consent to a settlement or compromise; therefore, Ark. Code Ann. § 28-65-302(a)(l)(G) is inapplicable in this case. The claims subject to the arbitration agreement have yet to be decided, and the parties will be free to make arguments regarding their claims before the arbitrator. At this point, no settlement or compromise exists; therefore, Betts, as guardian, could not have consented to such when she signed the contracts that included the arbitration agreements. We cannot say that the circuit court clearly erred in its interpretation of Ark. Code Ann. § 28-65-302(a)(l)(G).
Finally, HVC’s estate argues that the contract agreeing to binding arbitration of an incapacitated person’s claims without court approval violates Arkansas public policy. Again citing to Ark. Code Ann. §§ 28-65-301 (a) (3) and 28-65-302(a)(l)(G), HVC contends that Betts, as guardian, “ignore[d] specific Arkansas statutory law that prevented her from agreeing to divest the court of jurisdiction or compromise the right to have the probate judge hear any matters regarding the estate.” For the reasons already discussed, Ark. Code Ann. §§ 28-65-301 (a) (3) and 28-65-302(a)(1)(G) did not prevent Betts from opening investment accounts specifically authorized by the probate court and signing contracts that included arbitration provisions.
We have noted that, as a matter of public policy, arbitration is strongly favored in Arkansas. See, e.g., Ruth R. Remmell Revocable Trust, Inc. v. Regions Fin. Corp., 369 Ark. 392, 255 S.W.3d 453 (2007); Pest Mgmt. v. Langer, 369 Ark. 52, 250 S.W.3d 550 (2007); Slusser v. Farm Serv., Inc., 359 Ark. 392, 198 S.W.3d 106 (2004). We have also recognized that arbitration is looked upon with approval by courts as a less expensive and more expeditious means of settling litigation and relieving docket congestion. Hart v. McChristian, 344 Ark. 656, 42 S.W.3d 552 (2001). We understand that our cases involving arbitration agreements have not dealt with issues concerning a guardian’s right to enter an arbitration agreement on behalf of a ward.
As we have stated many times, it is for the General Assembly, not the courts, to establish public policy. See, e.g., Brewer v. Poole, 362 Ark. 1, 207 S.W.3d 458 (2005). Here, the legislature has spoken on the issue of what is required of a guardian of the estate. The legislature has made it clear, pursuant to its enactment of Ark. Code Ann. § 28-65-301(b)(l)(B) (Repl. 2004), that a guardian has a duty to invest the funds of the estate. The circuit court found, and we agree, that “by authorizing Betts to deposit and invest the funds and other assets of the guardianship estate, she would also have the authority to execute whatever account forms or client agreements would be necessary in order to accomplish the same,” and that “[i]t is apparent that the completion of the new account forms and the execution of the client agreements with which arbitration disclosures were included, were done in the ordinary course of business for the purpose of establishing those accounts within which the assets were to be deposited as authorized by the Probate Court.” By entering into agreements with financial institutions to invest on behalf of the estate of HVC, Betts acted as required by § 28-65-301(b). Furthermore, if the legislature had intended to prohibit a guardian, on behalf of the estate, from entering a contract containing an arbitration agreement, it could have expressly done so, but it did not. Accordingly, we cannot say that a contract agreeing to binding arbitration of an incapacitated person’s claims without court approval violates Arkansas public policy.
Affirmed.
We observe that, in its argument before the circuit court and in its argument on appeal, HVC relies on the 2004 versions of the statutory subsections at issue, even though Betts entered into agreements with Raymond James prior to 2004. Because there are merely technical, not substantive, differences between prior versions of the subsections and the 2004 versions of the subsections at issue, we will consider the 2004 version in our analysis. | [
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Tom Glaze, Justice.
This case presents an issue of whether a city employee is immune from suit in a civil-rights action. The appellee, Ms. Jeanny Romine, fives at 11 Trenton Boulevard in Fayetteville. Around September of 1998, she began to notice the smell of raw sewage in her back yard. Romine notified the City of Fayetteville about the sewage odor, and subsequent testing by the City revealed that the source of the odor was raw sewage that was seeping downhill from her neighbors’ clogged sewer fines and overflowing from a clean-out meter box in Romine’s yard. Although, at the time, the City had determined that the sewer fines were private fines, rather than city-owned fines, it nonetheless cleaned out the sewer drains that were causing the problem. In addition, in October of 1998, the City offered to pay Romine $880 for an easement over her property. The easement would have allowed the City to go on to Romine’s property, refine the existing sewer pipe, and replace the clean-out box with a manhole for future access.
However, Romine refused the offer of $880 for the easement, believing the offer was not sufficient compensation for her land. After she refused to accept the easement, the City informed her that, because the sewer lines were private, there was nothing else the City could do for her. For the next seven years, sewage continued to seep over Romine’s land from the defective sewer lines, and Romine filed suit against the City of Fayetteville in 2005. In addition, Romine sued her uphill neighbors — David and Andrea Fournet and Mark Risk — and appellant David Jurgens, the Superintendent of the Water and Sewer Division for the City of Fayetteville.
Romine’s complaint raised counts of inverse condemnation, outrage, and negligence against the City; outrage, negligence, public nuisance, and trespass against the neighbors; and “toxic assault and battery” against both the City and the neighbors. In addition, Romine brought a civil-rights claim against the City and Jurgens. Specifically, Romine alleged that Jurgens was personally aware of the presence of raw, untreated sewage on her property in 1998 and was aware of the hazards of exposure to raw sewage. Further, she contended that, after she declined the City’s offer of $880 for an easement, “Jurgens informed [her] that the offer was withdrawn and that the City of Fayetteville would take no further steps to remedy the sewage problem.” Jurgens’s actions in “withdrawing” the offer for the proposed easement, Romine claimed, constituted a deprivation of her Fifth Amendment rights to be free from governmental takings of her property without just compensation.
Jurgens answered, contending that any contact he had with Romine was solely in his official capacity as a city employee, and as such, he was immune from suit. On July 23, 2007, Jurgens moved for summary judgment, arguing that, because he was sued in his official capacity, he was protected from suit by Ark. Code Ann. § 21-9-301 (Repl. 2004). He alleged that, because he had acted in good faith in his dealings with Romine, and she had not pled any facts establishing that he acted with malice, he was entitled to summary judgment. After a hearing on September 7, 2007, the Washington- County Circuit Court denied Jurgens’s summary-judgment motion, finding that there were disputed facts as to whether Jurgens had acted with conscious indifference towards Romine’s problems. Jurgens filed his notice of appeal on September 18, 2007.
As a general rule, the denial of a motion for summary judgment is neither reviewable nor appealable. See Ark. River Educ. Servs. v. Modacure, 371 Ark. 466, 267 S.W.3d 595 (2007). However, that general rule does not apply where the refusal to grant a summary-judgment motion has the effect of determining that the appellant is not entitled to immunity from suit, as the right of immunity from suit is effectively lost if a case is permitted to go to trial. See Modacure, supra. The issue of whether a party is immune from suit is purely a question of law, see Smith v. Brt, 363 Ark. 126, 211 S.W.3d 485 (2005), and is reviewed de novo. Modacure, supra.
Arkansas affords a measure of immunity from suit to municipal corporations and their employees. Ark. Code Ann. § 21-9-301 (Repl. 2004) provides, as follows:
(a) It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the state and any of their boards, commissions, agencies, authorities, or other governing bodies shall be immune from liability and from suit for damages except to the extent that they may be covered by liability insurance.
(b) No tort action shah he against any such political subdivision because of the acts of its agents and employees.
This court has consistently held that § 21-9-301 provides city employees with immunity from civil liability for negligent acts, but not for intentional acts. See Smith v. Brt, 363 Ark. at 130, 211 S.W.3d at 489; Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 720 (1992).
In this case, Romine sued Jurgens in his official capacity as Sewer and Water Maintenance Supervisor for the City of Fayetteville. In cases involving the existence of immunity under § 21-9-301, this court has utilized the analysis performed in interpreting the counterpart qualified-immunity statute that applies to state employees, Ark. Code Ann. § 19-10-305 (Repl. 2007); see Smith v. Brt, supra; City of Farmington v. Smith, 366 Ark. 473, 237 S.W.3d 1 (2006). Section 19-10-305 provides state employees with qualified immunity from civil liability for non- malicious acts occurring within the course of their employment. City of Farmington, supra; Beaulieu v. Gray, 288 Ark. 395, 705 S.W.2d 880 (1986). In interpreting § 19-10-305, we have traditionally been guided by the analysis adopted by the United States Supreme Court for qualified-immunity claims in federal civil-rights actions. See Fegans v. Norris, 351 Ark. 200, 89 S.W.3d 919 (2002) (citing Harlow v. Fitzgerald, 457 U.S. 800 (1982)).
In both Smith v. Brt, supra, and City of Farmington v. Smith, supra, this court has explained the qualified immunity issue as follows:
Under that analysis, a motion for summary judgment based upon qualified immunity is precluded only when the plaintiff has asserted a constitutional violation, demonstrated the constitutional right is clearly established, and raised a genuine issue of fact as to whether the official would have known that the conduct violated that clearly established right. Fegans v. Norris, supra (citing Baldridge v. Cordes, 350 Ark. 114, 120-21, 85 S.W.3d 511, 514-15 (2002)). An official is immune from suit if his or her actions did not violate clearly established principles of law of which a reasonable person would have knowledge. Id. (citing Harlow v. Fitzgerald, 451 U.S. 800 (1982)). The objective reasonable-person standard utilized in qualified-immunity analysis is a legal inquiry. Baldridge v. Cordes, supra.
The inquiry outlined above is a restatement of the standard used by this court to evaluate motions for summary judgment on the ground of qualified immunity. See Baldridge v. Cordes, supra (citing Pace v. City of Des Moines, 201 F.3d 1050 (8th Cir. 2000)). The Eighth Circuit Court of Appeals has emphasized, however, that such a restatement of the standard is incomplete: “Courts deciding questions of qualified immunity must also recognize that ‘whether summary judgment on grounds of qualified immunity is appropriate from a particular set of facts is a question of law.’ ” Pace v. City of Des Moines, 201 F.3d at 1056 (citing Lambert v. City of Dumas, 187 F.3d 931, 935 (1999)).
City of Farmington v. Smith, 366 Ark. at 478-79, 237 S.W.3d at 5-6; Smith v. Brt, 363 Ark. at 131, 211 S.W.3d at 489.
Applying these rules, Romine’s suit against Jurgens is therefore barred unless she has “asserted a constitutional violation, demonstrated the constitutional right is clearly established, and raised a genuine issue of fact as to whether the official would have known that the conduct violated that clearly established right.” Smith v. Brt, 363 Ark. at 131, 211 S.W.3d at 489; see also Fegans v. Norris, supra; Baldridge v. Cordes, supra. Because of the interlocutory nature of this type of appeal, our court is limited to determining whether the law or right Jurgens is alleged to have violated was clearly established at the time of the alleged violation, and whether a reasonable person would have known about it. City of Farmington, 366 Ark. at 479, 237 S.W.3d at 6.
Romine asserts that she had a constitutional right to be “free from uncompensated governmental takings of her property.” Although Jurgens counters that there was no “taking” at all, let alone an uncompensated taking, Romine appears to be contending that the fact that the sewage overflow on her property constituted a form of inverse condemnation. See Robinson v. City of Ashdown, 301 Ark. 226, 783 S.W.2d 53 (1990). In Robinson, a homeowner sued the City of Ashdown because a city-owned sewer line consistently failed and caused sewage'to overflow into the homeowner’s home over a period of nine years. This court held that a continuing trespass or nuisance, in the form of constantly overflowing sewage, could ripen into inverse condemnation. More specifically, the Robinson court held that, “[w]hen a municipality acts in a manner which substantially diminishes the value of a landowner’s land, and its actions are shown to be intentional, it cannot escape its constitutional obligation to compensate for a taking of property on the basis of its immunity from tort action.” Robinson, 301 Ark. at 232, 783 S.W.2d at 56-57. Thus, it would appear that Romine has asserted a clearly established constitutional right — i.e., the right to be free from government action that diminishes the value of her land. See Ark. Const, art. 2, § 22 (“The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.”).
However, that is not the end of the analysis. Even though Romine has asserted a constitutional violation and demonstrated that the constitutional right was clearly established, she must still raise a genuine issue of fact as to whether the official would have known that his conduct violated that clearly established right. See City of Farmington, 366 Ark. at 478, 237 S.W.3d at 5. Romine alleges that Jurgens should have known that “refusing to maintain a public sewer system because an affected landowner refused to sell her property for less than fair market value violated constitutionally protected rights.”
Romine’s argument is premised on her assertion that Jurgens failed to maintain a public sewer system — i.e., one that was the City’s responsibility. However, at the time of Jurgens’s sole encounter with Romine in 1998, he determined that the faulty sewer lines had not been installed by the City and that the City did not own the line at any time prior to 1997 or thereafter. Jurgens’s determination was based on the facts that: 1) the City had no easement; 2) the line had bends in it; and 3) it did not have a manhole at the end. Jurgens averred that city-owned sewer lines “are laid straight, have manholes on the ends, are six inches in diameter, and have easements or are in rights-of-way.” Romine’s own expert witness, James Moore, Ph.D., testified that a city engineer looking at Romine’s pipes could, reasonably and in good faith, make the determination that the sewer lines were private. Therefore, Jurgens did not, as Romine accuses, “refuse to maintain a public sewer system.” Rather, he declined to trespass on private property without the homeowner’s consent when the homeowner rejected the City’s offer to purchase an easement.
A party opposing a motion for summary judgment must meet proof with proof. See Gallas v. Alexander, 371 Ark. 106, 263 S.W.3d 494 (2007); City of Farmington v. Smith, supra. In his motion for summary judgment, Jurgens asserted that he met with Romine on one occasion in the fall of 1998 in order to discuss the easement. By deposition testimony, Jurgens further explained that he was there as the project manager for the larger sewer rehabilitation project that Fayetteville was undertaking at the time, and he was the most knowledgeable person about that project. Jurgens stated that he did not “withdraw” the City’s offer to purchase an easement, but instead simply advised Romine that, without an easement, the City would later be unable to do the specific repair work it proposed at that time. He explained to her that if she refused the easement, neither he nor any other employee of the City would be able to unclog or provide any other maintenance to the line in the future. Jurgens further stated it was his understanding that, if the City did not have a legal easement over a sewer line, then it could not legally maintain or improve the line, because the City would, in those circumstances, be trespassing on private property.
Romine offered nothing to rebut the factual assertions raised in Jurgens’s deposition offered in support of his motion for summary judgment. In her response to his motion, Romine alleged that, “[r]egardless of whether Jurgens withdrew his initial offer, or whether Romine refused an insufficient and ineffective offer, Jurgens still had a duty to prevent sewage from overflowing onto Romine’s property.” Fler argument, however, does not refute Jurgens’s factual assertion that, if the sewer lines were not owned by the City, but were instead private lines, the City — and by extension, Jurgens — owed no duty to Romine.
Thus, while Romine may have arguably alleged a violation of a clearly established constitutional right, she has failed to raise a genuine issue of fact as to whether Jurgens should have known that his actions as a city employee violated that right. In the absence of evidence showing that Jurgens knew or should have known that he was violating her rights, the circuit court should have found that Jurgens was entitled to immunity and granted his motion for summary judgment on that basis.
The parties raise additional arguments, but it is unnecessary to dwell on them at any length. For instance, Jurgens also cites cases interpreting § 19-10-305 that hold government officials are immune for non-malicious acts occurring within the course of their employment. See, e.g., Simons v. Marshall, 369 Ark. 447, 255 S.W.3d 838 (2007) (discussing malice); Fegans v. Norris, supra; Fuqua v. Flowers, 341 Ark. 901, 20 S.W.3d 388 (2000). However, those cases were all specifically brought under § 19-10-305 and involved civil-rights actions brought against State employees. Section 19-10-305 explicitly provides that “[o]fficers and employees of the State of Arkansas are immune from liability and from suit, except to the extent that they may be covered by liability insurance, for damages for acts or omissions, other than malicious acts or omissions, occurring within the course and scope of their employment.” Ark. Code Ann. § 19-10-305(a) (Repl. 2007) (emphasis added).
The instant case, by contrast, is governed by the analysis in Smith v. Brt and City of Farmington v. Smith, as those cases deal specifically with § 21-9-301, which does not contain the same kind of language about “other than malicious acts or omissions.” Therefore, although the parties go into some depth about the question of malice, it is irrelevant.
Also irrelevant — to some degree — is the discussion of whether malice could be inferred by Jurgens’s “conscious indifference” to Romine’s situation. The circuit court based its ruling, in part, on its belief that there were disputed facts as to whether Jurgens and the City acted with conscious indifference. In her arguments to the trial court and in her appellate brief, Romine urges that malice could be inferred by applying a “conscious indifference” standard. However, that standard was adopted in Shepherd v. Washington County, 331 Ark. 480, 962 S.W.2d 779 (1998), a case involving a civil-rights claim brought against the State Police when an inmate under police custody escaped and shot a bystander. This court held that, to infer malice from a state actor’s conscious indifference, it must be shown that, “indifferent to consequences, the defendant intentionally acted in such a way that the natural and probable consequence of his act was injury to the plaintiff.” Shepherd, 331 Ark. at 504, 962 S.W.2d at 790.
However, Shepherd was strictly limited to its facts, see id. at 501, 504-05, 962 S.W.2d at 789, 790, and its reach was severely limited by this court in Grayson v. Ross, 369 Ark. 241, 253 S.W.3d 428 (2007), in which this court held that the standard applicable to claims under the Arkansas Civil Rights Act involving a pretrial detainee is “deliberate indifference.” Accordingly, because both Shepherd and Grayson present fact situations vastly different from the situation involved in the instant case, Romine’s reliance on them is inapposite.
In sum, Jurgens established that he was entitled to qualified immunity under Ark. Code Ann. § 21-9-301, and the circuit court erred in denying his motion for summary judgment. The case is reversed and remanded for entry of an order consistent with this opinion.
In her brief, Romine attempts to argue that her suit was actually against Jurgens in his individual capacity, but her assertion is belied by her express representations to the trial court. Her complaint alleged that she sued Jurgens solely in his official capacity, and at the hearing on Jurgens’s summary-judgment motion, the circuit court specifically asked Romine whether she was suing him in his official capacity. She replied that she was suing Jurgens in his official capacity, not “privately.” The court specifically referenced this exchange in its order, writing that “plaintiffs counsel confirmed on the record that the allegations as against David Jurgens are solely in his official capacity.” | [
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Jim Hannah, Chief Justice.
Terry Hanners appeals an order of the Mississippi County Circuit Court granting summary judgment in favor of appellee Giant Oil Company of Arkansas, Inc. Hanners also appeals the circuit court’s order awarding attorney’s fees and costs to Giant Oil under Ark. Code Ann. § 16-22-308 (Repl. 1999). This is the second appeal of this case involving the interpretation of a purchase-option provision and the award of attorney’s fees and costs. The first appeal was dismissed without prejudice pursuant to Ark. R. Civ. P. 54(b), because the summary judgment order appealed from left a counterclaim unresolved. See Hanners v. Giant Oil Co. of Ark., Inc., 369 Ark. 226, 253 S.W.3d 424 (2007). On appeal, Hanners raises two arguments for reversal: the circuit court erred in (1) granting Giant Oil’s motion for summary judgment in this declaratory judgment action because the purchase-option provision drafted by Giant Oil’s attorney is ambiguous, and (2) awarding $7,500 in attorney’s fees and costs to Giant Oil because Ark. Code Ann. § 16-22-308 does not allow for the award of attorney’s fees in declaratory judgment actions where no claim is made to recover for breach of contract, no claim is made for the recovery of damages, and no damages are recovered. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(7) because this is the second appeal following an appeal that was decided in this court.
On August 12, 1981, Hanners and Giant Oil entered into a lease agreement whereby Hanners leased real property to Giant Oil for use as a gas station and convenience store. The lease provided for five lease periods, each period being a five-year term. The first or “primary term” under the lease began on January 1, 1982. Each subsequent term commenced at the end of the prior term unless “more than sixty days prior to the end of any term” Giant Oil notified Hanners it did not wish to “renew any further.” In that case, the lease terminated at the end of the then “current term.” The lease also contained the following purchase-option provision:
3.4 Lessor hereby grants unto Lessee the right to purchase the premises for $150,000.00 at the end of the primary term and the first option period. Thereafter, for the three 5-year terms, this option price shall increase to $200,000.00.
Throughout the years, Giant Oil exercised its renewal option, and on June 1, 2004, during the fifth and final term under the lease, Giant Oil sent a letter to Hanners notifying him of its intention to exercise the option of purchasing the leased real property. In ajune 25, 2004 letter, Hanners, through his attorney, informed Giant Oil that he would not sell the property because Giant Oil had failed to notify Hanners as required by the lease agreement.
On September 23, 2004, Giant Oil filed a complaint for declaratory judgment concerning the rights, status, and legal relations of Giant Oil and Hanners in the lease agreement, and seeking a judgment declaring: (a) Giant Oil had provided reasonable notice to Hanners of its exercise of the purchase option; (b) Giant Oil was contractually entitled to purchase the lease property on December 31, 2006, under the terms of the purchase option; and (c) the lease agreement did not contain a notice requirement. On November 14, 2005, Giant Oil filed a motion for summary judgment, asserting that the plain and unambiguous language of the lease clearly entitled Giant Oil to purchase the leased property at the end of the primary term of the lease and at the end of any of the four subsequent optional terms of the lease.
On December 2, 2005, Hanners filed an amended answer and counterclaim. In the amended counterclaim, Hanners argued that he was entitled to a judgment declaring: (a) the agreement between Hanners and Giant Oil required Giant Oil to exercise its option to purchase no later than the end of the third renewal term; (b) Giant Oil failed to purchase the property within that time provided by the lease agreement; and (c) Hanners is not obligated to sell the real property to Giant Oil at the end of the current lease term. Hanners also prayed that Giant Oil’s complaint be dismissed. That same day, Hanners filed his response to Giant Oil’s motion for summary judgment, contending that summary judgment should not be granted because the lease agreement was not clear and, at best, it was ambiguous. Hanners also contended that the lease agreement did not entitle Giant Oil to purchase at any time, but that the purchase option had to be exercised before the end of the third renewal term. In addition, in response to Giant Oil’s motion for summary judgment, Hanners requested that the court grant the relief requested in his counterclaim. In response, on December 19, 2005, Giant Oil requested that the circuit court dismiss Hanners’s counterclaim.
On February 3, 2006, a hearing was held on Giant Oil’s motion for summary judgment. Following this hearing, on March 27, 2006, the circuit court entered a judgment granting Giant Oil’s motion for summary judgment finding “[t]he terms of the Lease Agreement are unambiguous, and according to the plain and ordinary meaning of Paragraph 3.4 of the Lease Agreement, Giant Oil Company of Arkansas, Inc. is entitled to purchase the property described in the Lease Agreement for $200,000.00 on December 31, 2006.”
Following the March 27 order, Giant Oil filed a motion for attorney’s fees and costs. On July 5, 2006, a hearing was held on the motion. In an order entered July 18, 2006, the circuit court found that Giant Oil was entitled to $7,500 in attorney’s fees and costs.
Summary Judgment
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. Windsong Enters., Inc. v. Upton, 366 Ark. 23, 233 S.W.3d 145 (2006). Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, responses to requests for admission, and affidavits show that there is no genuine issue of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Id. 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. Id.
The first rule of interpretation of a contract is to give to the language employed the meaning that the parties intended. See Alexander v. McEwen, 367 Ark. 241, 239 S.W.3d 519 (2006). In construing any contract, we must consider the sense and meaning of the words used by the parties as they are taken and understood in their plain and ordinary meaning. See id. “The best construction is that which is made by viewing the subject of the contract, as the mass of mankind would view it, as it may be safely assumed that such was the aspect in which the parties themselves viewed it.” Coleman v. Regions Bank, 364 Ark. 60, 65, 216 S.W.3d 569, 574 (2005) (citing Missouri Pac. R.R. Co. v. Strohacker, 202 Ark. 645, 152 S.W.2d 557 (1941)). It is also a well-settled rule in construing a contract that the intention of the parties is to be gathered, not from particular words and phrases, but from the whole context of the agreement. See Alexander, supra.
Where there is uncertainty of meaning in a written instrument, an ambiguity is present. See id. (citing Black’s Law Dictionary 88 (8th ed. 2004)). Where an ambiguity is found within the contract, parol evidence may be admitted. Ultracuts Ltd. v. Wal Mart Stores, Inc., 343 Ark. 224, 33 S.W.3d 128 (2000). It may not be admitted to alter, vary, or contradict the written contract, but it may be admitted to prove an independent, collateral fact about which the written contract was silent. Id.
Hanners claims that the circuit court erred in granting summary judgment because the purchase-option language is ambiguous. Hanners’s interpretation of the lease agreement was that Giant Oil only had the right to purchase the property up through the end of the third renewal term, which ended on December 31, 2001. He states that this interpretation of the contract is consistent with what he was told by Giant Oil’s vice president and Giant Oil’s attorney at the time the contract was signed.
According to Hanners, at the time he agreed to enter into the lease agreement, he discussed the matter with Giant Oil’s vice president, George Barry, and Giant Oil’s attorney, Henry Swift, and they all understood that the option to purchase had to be exercised while Giant Oil still had the option to renew for another term. Hanners maintains that no renewal time remained at the time Giant Oil gave notice that it intended to purchase the property, because the letter dated June 1, 2004, giving notice that Giant Oil wanted to purchase the property, was given during the last term, which ended December 31, 2006. In short, Hanners takes the position that Giant Oil simply waited too late to exercise its option to purchase the property.
Hanners asserts that, if the court reads paragraphs 1.1, 1.2, and 3.4 of the lease agreement, together in the context of what Hanners was told at the time he signed the contract, Hanners’s interpretation of that language makes perfect sense.
Paragraphs 1.1, 1.2, and 3.4 of the lease agreement provide:
1.1 Term of Lease Contract: The term of this lease shall commence on January 1st, 1982, and shall continue for a primary term of five years. Thereafter, Lessee may renew this Lease for four additional five year periods. All of such renewals will be on the same terms and conditions as provided in this Lease except as to rent. All of the renewal terms for which options are hereby granted shall be each in turn deemed exercised unless Lessee shall have more than sixty days prior to the end of any term which may at that time be current, notified Lessor that it does not wish to renew any further, in which case the Lease shall terminate at the end of whatever term at that time may be current.
1.2 Rentals: The rentals to be paid during the terms of this Lease shall be as follows:
(a) $650.00 per month for the primary term of five years;
(b) $650.00 per month for the first renewal term of five years;
(c) $750.00 per month for the second renewal term of five years;
(d) $800.00 per month for the third renewal term of five years; and
(e) $850.00 per month for the fourth renewal term of five years.
3.4 Lessor hereby grants unto Lessee the right to purchase the premises for $150,000.00 at the end of the primary term and the first option period. Thereafter, for the three 5-year terms, this option price shall increase to $200,000.00.
Hanners contends that, under the interpretation advanced by Giant Oil, which was accepted by the circuit court, Giant Oil was entitled to purchase the property at any time until its right to occupy the property ended — December 31, 2006 — without giving any notice to Hanners. In sum, Hanners states that Giant Oil’s interpretation is not consistent with what Giant Oil’s attorney and vice president told him before and at the time the contract was signed; is not consistent with the language used in the contract; and “is contrary to normal business practice and common sense.”
To accept Hanners’s interpretation of the lease agreement, this court must agree with Hanners’s assertion that, in paragraph 3.4, the words “primary term” and the words “first option period” are synonymous and interchangeable terms that both make reference to the first five-year term of the lease during which Giant Oil had the option to either renew the lease or buy the property for $150,000. This is not a reasonable interpretation of the language used in the lease agreement.
Paragraph 1.1 of the lease agreement divides the lease into five distinct periods, each with a five-year term. In both paragraphs 1.1 and 3.4, the lease provides that the lease is comprised of one primary term and four option periods, all of which are five years in duration. In viewing paragraph 3.4 in concert with the entire lease, specifically the terminology contained in paragraph 1.1, it is obvious that Giant Oil was entitled to purchase the property during all of the five terms, and specifically, at the end of the final term of the lease, December 31, 2006.
Here, the circuit court correctly concluded that the lease was unambiguous and that the lease agreement allowed Giant Oil to purchase the property at the end of the final option period, which expired on December 31, 2006. Having found that the lease agreement was unambiguous, the circuit court did not err in granting summary judgment in favor of Giant Oil because there were no material facts left unanswered.
Attorney’s Fees
Hanners contends that the circuit court erred in awarding attorney’s fees and costs to Giant Oil in the amount of $7,500 because Ark. Code Ann. § 16-22-308 does not allow for the award of attorney’s fees in declaratory-judgment actions where no claim is made to recover for breach of contract, no claim is made for the recovery of damages, and no damages are recovered. Our general rule relating to attorney’s fees is well established and is that attorney’s fees are not allowed except when expressly provided for by statute. Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). An award of attorney’s fees will not be set aside absent an abuse of discretion. See Harris v. City of Fort Smith, 366 Ark. 277, 234 S.W.3d 875 (2006).
Section 16-22-308 provides in relevant part that “[i]n any civil action to recover on . . . [a] breach of contract, . . . the prevailing party may be allowed a reasonable attorney’s fee to be assessed by the court and collected as costs.” The court must determine whether § 16-22-308 provides for attorney’s fees in the present case.
We review issues of statutory interpretation de novo. Harris, supra. 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.
Here, the circuit court concluded that, as the prevailing party in a civil action regarding a contract, Giant Oil was entitled to attorney’s fees pursuant to § 16-22-308. Further, the circuit court awarded costs, pursuant to Ark. Code Ann. § 16-111-111 (Repl. 2006).
The circuit court erred in its interpretation of § 16-22-308. Giant Oil’s complaint states that it “is brought pursuant to A.C.A. § 16-111-101 et seq. (1987) to obtain a declaratory judgment concerning the rights, status and legal relations of Giant Oil and Hanners in the Lease Agreement.” This is an action brought under Arkansas’s Declaratory Judgment Act, and Giant Oil points to nothing in the Act that allows the court to award attorney’s fees, even where the underlying dispute arises from a contract. Because Giant Oil prevailed in a declaratory-judgment action, and not a breach-of-contract action, the circuit court did not have discretion to award attorney’s fees pursuant to § 16-22-308. Therefore, the circuit court’s award of attorney’s fees must be reversed.
While there is no provision for attorney’s fees under the Arkansas Declaratory Judgment Act, there is a provision for costs. Pursuant to Ark. Code Ann. § 16-111-111, “[i]n any proceeding under this chapter, [Declaratory Judgments], the court may make such award of costs as may seem equitable and just.” Thus, it was within the circuit court’s discretion to award costs to Giant Oil. However, this court must reverse and remand on the issue of costs because the language used by the circuit court in its order awarding attorney’s fees and costs makes it impossible to determine what portion of the award is for attorney’s fees, which is not allowable under § 16-111-111, and what portion of the award is for costs, which is allowable under § 16-111-111. The circuit court merely concluded that Giant Oil was entitled to “$7,500.00 representing their reasonable attorney’s fees and costs in this matter.” Accordingly, we reverse and remand to the circuit court for a determination of what costs may be awarded pursuant to § 16-111-111.
Affirmed in part; reversed in part; reversed and remanded in part.
Hanners’s original answer and counterclaim was filed on February 18,2005.
Giant Oil contends that Stilley v. James, 347 Ark. 74, 60 S.W.3d 410 (2001), offers support for its position that it is entitled to attorney’s fees. In that case, this court upheld the award of attorney’s fees pursuant to § 16-22-308 where the underlying case was a declaratory -judgment action involving an indemnity agreement.
The Stilley case is distinguishable from the instant case. Here, Giant Oil merely asked for an interpretation of the lease agreement and a declaration of the parties’ rights. No claim was made to recover for breach of contract, no claim was made for the recovery of damages, and no damages were recovered. In fact, under Giant Oil’s interpretation of the lease agreement, which was adopted by the circuit court, there was no way Hanners could have been in breach of contract at the time the suit was filed, or at the time of the summary judgment, or at the time of the attorney’s fees hearing, because both Giant Oil and the circuit court read the contract to allow Giant Oil to wait until December 31,2006, the last day of the agreement, to exercise its purchase option.
Further, at no time prior to the entry of summary judgment did Giant Oil assert that Hanners had breached its contract. In contrast, the prevailing parties in Stilley sued Stilley for breach of an indemnity contract and recovered a judgment in the amount of $200,000 based on Stilley’s breach of that agreement. The cause of action in Stilley fell within the provisions of § 16-22-308; Giant Oil’s declaratory judgment against Hanners does not. | [
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Jim Hannah, Chief Justice.
Benton County, Arkansas, appeals an order of the Benton County Circuit Court granting summary judgment in favor of the cities of Bentonville and Siloam Springs and finding that Benton County failed to bear its burden of proving that Act 219 of 1963 cannot be rationally related to achieving a legitimate governmental purpose. Under this court’s precedent, an act of the General Assembly will not be declared unconstitutional under Amendment 14 unless the party challenging the act proves that the act is not rationally related to a legitimate governmental interest. We affirm the circuit court’s finding that Benton County failed to bear its burden of proof. This is the second appeal in this case. See City of Siloam Springs v. Benton County, 350 Ark. 152, 85 S.W.3d 504 (2002). Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(l) and (7).
As in the first appeal, at issue is the constitutionality of Act 219 of 1963, an uncodified act that directs the Collector ofBenton County to apportion to the cities of Rogers, Bentonville, and Siloam Springs 90% of the road funds collected within the corporate limits of those cities. According to Act 219, the funds apportioned to the cities are “for the purpose of constructing and maintaining streets, alleys, bridges and culverts.” Act 219, § 1. In City of Siloam Springs, supra, this court reversed summary judgment entered in favor of Benton County. In the summary judgment motion considered on the first appeal, Benton County had argued below pursuant to City of Little Rock v. Campbell, 223 Ark. 745, 268 S.W.2d 368 (1954) and Street Improvement District Nos. 481 & 485 v. Hadfield, 184 Ark. 598, 43 S.W.2d 62 (1931), and the circuit court found that Act 219 was special legislation invalid on its face under Amendment 14.
Amendment 14 provides that “[t]he General Assembly shall not pass any local or special act.” This court held in City of Siloam Springs, 350 Ark. at 158, 85 S.W.3d at 508, that the circuit court erred in granting summary judgment in favor of Benton County because the County “as the party challenging the constitutionality of the act, had the burden of proving that Act 219 is unconstitutional” under the analysis set out in Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983) and McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997). As discussed in these two cases, before an act may be declared unconstitutional special legislation under Amendment 14, the challenger of the legislation must show not only that it affects only a single portion of the state, but also that the “act was not rationally related to a legitimate governmental purpose.” City of Siloam Springs, 350 Ark. at 158, 85 S.W.3d at 507.
Upon remand, Benton County again brought a motion for summary judgment. On this second motion, Benton County showed first that Act 219 only affects a portion of the state. It is clear that Act 219 applies only to the cities of Rogers, Bentonville, and Siloam Springs. Thus, Benton County showed that Act 219 is special local legislation. However, under the rational basis test, Benton County still had to overcome the presumption that the act is constitutional by proving that “the act is not rationally related to achieving any legitimate objective of state government under any reasonably conceivable state of facts.” City of Siloam Springs, 350 Ark. at 158, 85 S.W.3d at 507 (quoting Streight, supra, 280 Ark. at 214, 655 S.W.2d at 464).
Benton County asserted in its motion that “there is no conceivable rational basis for Act 219’s increase in the amount distributed of Road Tax to three specifically named cities in Benton County.” In support of this assertion, Benton County relied on affidavits from officials of other cities in Benton County asserting that their present needs for the funds are as great or greater than that of the cities listed in Act 219. Evidence was also offered to show that Benton County itself desperately needs greater funding to meet its present obligations for roadways. Benton County offered further argument and evidence to show that there were other cities in Benton County that had needs that were not materially different than those cities given preferential treatment under Act 219. Benton County argued further as follows:
Thus, even if Defendants could articulate a rational reason for receiving a greater allocation of Road Tax collections, there is no rational basis for denying the same benefits to cities within Benton County that share (or conceivably in the future could share) the same characteristics that justify the benefit. By specifically enumerating individual cities in lieu of a ‘classification,’ Act 219 is patently unconstitutional.
Benton County has thus put on evidence that other cities in Benton County are presently treated differently under Act 219 than Benton-ville and Siloam Springs. But no evidence was offered to show that Bentonville and Siloam Springs were treated differently than other cities elsewhere in the state. In the prior appeal in City of Siloam Springs, supra, we noted that in the former motion, “no showing was made, by affidavit or otherwise, that these three cities, Rogers, Bentonville, and Siloam Springs, were treated any differently than other similar cities in Benton County or elsewhere in the state.” City of Siloam Springs, 350 Ark. at 159, 85 S.W.3d at 508.
The question presented on an Amendment 14 challenge is “whether the general assembly could have had a rational basis for making the classification.” Board of Trustees v. City of Little Rock, 295 Ark. 585, 590, 750 S.W.2d 950, 953 (1988). The phrase “could have had” shows that this court looks to see whether the legislation violated Amendment 14 at the time the legislation was adopted. This is also apparent in Boyd v. Weiss, 333 Ark. 684, 695, 971 S.W.2d 237, 242-43 (1998), where this court found no merit in an argument that an act should be declared violative of Amendment 14 because “some disparate tax treatment affecting border cities might arise in the future.” This court’s discussion in Roster v. Jefferson County, 328 Ark. 223, 227, 944 S.W.2d 93, 95 (1997), is also instructive:
There was evidence at trial that, prior to the passage of Act 181, residents of Jefferson County living outside Pine Bluff were paying part of the expenses of the Pine Bluff Municipal Court, yet they were not permitted to vote for the municipal judge there. A rational basis for Act 181 was to remedy this inequity.
Act 181 was found rationally related to a legitimate governmental interest existing at the time Act 181 was passed. Further, this court consistently stated in City of Siloam Springs, supra, that Benton County had to show that the “act was not rationally related to a legitimate governmental purpose.” City of Siloam Springs, 350 Ark. at 158, 85 S.W.3d at 507. Use of the phrase “was not” means the question is whether the legislation violated Amendment 14 at the time it was passed. Thus, a challenger must prove that there was no rational relationship to a legitimate governmental purpose at the time the legislation was passed. No proof was offered to show that in 1963, Act 219 “was not rationally related to achieving any legitimate objective of state government under any reasonably conceivable state of facts.” See Streight, 280 Ark. at 214, 655 S.W.2d at 464. As the City of Bentonville notes, “The record is devoid of population figures for Benton County or any of the cities about roads and commercial activity there from the 1963 time period.” There is also no evidence offered regarding Benton County or other cities in other counties in the 1963 time period.
We must presume Act 219 of 1963 is constitutional, or in other words, that it was related to a legitimate governmental interest when enacted. City of Little Rock, supra; Streight, supra. The presumption presented in this case is that in 1963 there was a rational basis for Act 219’s requirement that the Collector of Benton County distribute 90% of road funds collected within the corporate limits of Rogers, Bentonville and Siloam Springs to those cities. That presumption has not been rebutted, and judgment in favor of the cities was proper.
Affirmed.
Brown and Imber, JJ., concur.
Corbin, J., dissents.
Act 219 of1963 amendedAct 174 of1920. Act 174 directed the collector ofBenton County to apportion to the City of Rogers 90% of the road funds collected within the corporate limits, and the City of Rogers is included in Act 219 of 1963 as a city that is to also receive 90% of road funds. The City of Rogers was dismissed from the action because its right to the 90% established in Act 174 predates the adoption of Amendment 14 in 1926. That decision was not appealed.
In Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983), this court adopted the rational basis test of the United States Supreme Court for challenges under Amendment 14 to the Arkansas Constitution. We stated as follows:
[S]ince we have previously held that whether an act is “special” depends upon whether it “by force of an inherent limitation arbitrarily separates some person, place or thing from those upon which, but for such separation it would operate”; and since a determination of the arbitrary nature of an act is precisely the goal of the rational basis test, we have no hesitancy to find it applicable to any Amendment 14 analysis also.
Streight, 280 Ark. at 213, 655 S.W.2d at 463. We noted that under the rational basis test, “we must presume the legislation constitutional, i.e. that it is rationally related to achieving a legitimate governmental objective.” Id. We further stated that this “presumption we indulge locates the burden of proof.” Streight, 280 Ark. at 214, 655 S.W.2d at 464. ”It imposes upon the party against whom it is directed the burden of proving the unconstitutionality of the legislation, i.e. that the act is not rationally related to achieving any legitimate objective of state government under any reasonably conceivable state of facts.” Id. | [
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Jim Hannah, Chief Justice.
This case involves a dispute between adjoining land owners. Appellant Aviation Cadet Museum, Inc. (ACM) operates a privately-held, public-access airport on its lands, and appellees Tom and Sue Hammer use a portion of their property for purposes of flying gas-powered remote-controlled or RC airplanes. Aircraft landing and taking off from ACM’s airport pass directly through airspace above the Hammer property. Carroll County Road 207, which is approximately twenty-five feet wide, lies between the two parcels of land. ACM appeals from the order of the Carroll County Circuit Court finding that ACM’s airfield was a nuisance and enjoining ACM from using its airfield for purposes of allowing airplanes to land and depart therefrom. The circuit court further ordered that the injunction was to remain in effect until such time, if any, that ACM could demonstrate to the court that it could operate its airfield in a manner that would not constitute a nuisance, would not trespass on the Hammer property, and would otherwise be operated in conformity with the law.
On appeal, ACM contends that the circuit court abused its discretion in enjoining ACM from using its property as an airport. ACM asserts that the use of its property as an airport, with only twenty-four operations per year, does not constitute a nuisance. Finally, ACM asserts that the provisions set forth in Arkansas Code Annotated section 27-116-102 (Repl. 1994) do not prevent the lawful use of property for airplane operations. We hold that the circuit court did not abuse its discretion in issuing an injunction to enjoin ACM from using its airport for purposes of allowing airplanes to land and depart therefrom.
The record reveals the following facts. The Hammers own 291 acres, twenty-three of which were purchased May 17, 1995, and on which they constructed their current residence. An additional 185 acres was purchased March 28, 1996, and the remaining eighty-three acres was bought May 22, 2000. The Hammers occupy the property and use it for residential purposes.
Tom Hammer, a licensed, instrument-rated pilot, has participated in building and flying RC planes since 1982. RC planes generally weigh up to fifty-five pounds, with wingspans up to ten feet, and fly at altitudes of 50 to 400 feet at speeds up to eighty miles per hour.
After purchasing the Carroll County property, Mr. Hammer commenced flying RC planes there with a flying club. Initially, the RC planes were flown in an area immediately north of the Hammer home. Because of space limitations, some flights crossed County Road 207. In 1997, Mr. Hammer considered the road crossing to pose some danger, so he moved the flight area a few hundred feet north to its current location.
In 2000, Mr. Hammer built two RC runways and a pavilion. RC planes typically fly on the Hammer property four to five days per week, weather permitting. In addition, Mr. Hammer hosts two annual weekend flying events that attract fifty to seventy-five pilots with multiple RC planes and approximately 250 participants and spectators.
Errol Severe, a commercial pilot who is retired from Delta Airlines, incorporated ACM as a nonprofit corporation to build a museum commemorating military aviators. On June 28, 2001, ACM purchased approximately seventy-three acres of property and constructed the museum. Currently, there are several buildings and fighter aircraft on site. Five hundred to one thousand people visit the museum each year, and it receives $50,000 to $60,000 per year in donations.
Mr. Severe was aware of the RC plane activity on the Hammer property when he made the ACM purchase. Nevertheless, he contacted the Federal Aviation Administration, seeking permission on behalf of ACM to build an airport on the ACM property. By letter dated July 13, 2001, the FAA informed Mr. Severe, among other things:
The Federal Aviation Administration (FAA) has completed an Airspace Utilization Study No. 01-ASW-1031-NRA for the acti vation of a privately owned public-use airport, Silver Wings Field, near Eureka Springs, Arkansas. We have no objection to the proposal from an airspace utilization standpoint.
This determination should not be construed to mean FAA approval of the physical development involved in the proposal nor as approval of its effect on the environment. It is only a determination with respect to the safe and efficient use of airspace by aircraft. In making this determination, the FAA has considered matters such as:
1. The effect the proposal would have on existing or contemplated traffic patterns of neighboring airports,
2. The effects it would have on the existing airspace structure and projected programs of the FAA, and
3. The effects that existing or proposed manmade objects (on file with the FAA) and known manmade objects within the affected area would have on the airport proposal.
This determination in no way preempts or waives any ordinances, laws, or regulations of any other governmental body or agency. . . . Additionally, we wish to advise that the FAA cannot prevent the construction of any other structure near an airport. Protection of the airport environs can be accomplished only through such means as local airport zoning ordinances and acquisition of property rights.
ACM began constructing a grass airfield in April 2002 and landed the first plane in September 2002. The runway is approximately 1900 feet long and runs generally in a north and south direction with a flight path through the Hammer RC flying area. The south edge is approximately ten feet from County Road 207 and approximately thirty-five feet from the Hammer property. There is no fence between the airfield and County Road 207. The ACM airfield is said to have a 212-foot displaced threshold; however, the threshold is not marked. The altitude of the ACM airfield is approximately 1570 feet above sea level. The altitude of the Hammer property is approximately 1585 feet above sea level at the lowest point in the RC flying area and rises to approximately 1600 feet above sea level at its highest point.
The south end of ACM’s runway is approximately 500 feet from the north edge of the Hammer flying area for RC planes. The ACM airfield has no landing lights delineating the field and has no navigation system. The airfield does not have a fixed base operator. There are no operating planes permanently based or located at the ACM airfield. Approximately twenty-four visiting aircraft use the runway each year. In addition, ACM has a yearly fly-in, in which military helicopters and fighter aircraft fly by over the property at lower altitudes without landing.
The southerly landing approach to the ACM airfield requires planes to fly at extremely low altitudes in the airspace over the Hammer property. Planes taking off to the south likewise enter the Hammer property at low altitudes.
On November 15, 2005, the Hammers filed suit to enjoin ACM from using its property as an airport. In their complaint, the Hammers alleged that ACM had operated its airfield in a manner that resulted in overflights and low level “buzzing” of the Hammer property at altitudes substantially less than 500 feet. The Hammers alleged that such activity constituted a nuisance. They further contended that ACM’s operation of its airfield violated their surface rights to the enjoyment of their property in violation of Arkansas Code Annotated section 27-116-102. Additionally, the Hammers sought damages.
ACM filed an answer and a counterclaim for nuisance on January 11, 2006. In its counterclaim, ACM alleged that the Hammers’ operation of RC planes was hazardous to pilots attempting to land full-scale planes at ACM’s airport. ACM sought to enjoin the Hammers from operating any RC planes on their land and in the flight path of ACM’s airport. ACM also sought damages.
Subsequently, the Hammers filed an amended complaint. Again, they asserted that ACM’s operation of its airfield was in violation of Arkansas Code Annotated section 27-116-102 and they alleged that ACM’s activity constituted a nuisance. In addition, the Hammers asserted that the actions of ACM and its invitees and guests constituted a common-law trespass. In their amended complaint, the Hammers no longer sought damages; they did, however, continue to seek an injunction. ACM filed an amended answer and counterclaim, reasserting its nuisance claim and seeking an injunction, but no longer seeking damages.
On February 16, 2007, the circuit court held a hearing on the claims of the Hammers and ACM. On April 26, 2007, the circuit court entered an order enjoining ACM from using its airport for landing and departing airplanes until such time as ACM could demonstrate that its operations would not constitute a nuisance to the Hammers. In addition, the circuit court dismissed ACM’s counterclaim for nuisance.
At issue is whether the circuit court erred in granting an injunction preventing ACM from using its airfield for purposes of allowing planes to land and depart therefrom. This court reviews injunctive matters de novo. City of Dover v. City of Russellville, 363 Ark. 458, 215 S.W.3d 623 (2005). The decision to grant or deny an injunction is within the discretion of the trial judge. Id. The court will not reverse the judge’s ruling granting or denying an injunction unless there has been an abuse of discretion. See id. In reviewing the lower court’s findings we give due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id.
ACM asserts that the circuit court erred in concluding that the operation of ACM’s airport constituted a nuisance. ACM’s position is that its use of its property as an airport with twenty-four operations per year, with one landing and departure constituting one operation, is not a nuisance. Further, ACM contends that both parties can use their land in a manner that would not be a nuisance. ACM states that it is able to change the landing pattern of arriving and departing aircraft to avoid flying over the Hammer property and that it can issue a NOTAM (notice to airman) with the FAA that all aircraft in the vicinity will observe the presence of RC planes in the area. ACM also appears to assert that an injunction is an improper remedy because it has improved its property at an incredible cost and because the museum was established for a worthy cause and has benefited the citizens of, and visitors to, Carroll County.
Nuisance is defined as conduct by one landowner that unreasonably interferes with the use and enjoyment of the lands of another and includes conduct on property that disturbs the peaceful, quiet, and undisturbed use and enjoyment of nearby property. Goforth v. Smith, 338 Ark. 65, 991 S.W.2d 579 (1999). Equity will enjoin conduct that culminates in a private or public nuisance where the resulting injury to the nearby property and residents, or to the public, is certain, substantial, and beyond speculation and conjecture. See id. The general rule is that, in order to constitute a nuisance, the intrusion must result in physical harm, which must be proven to be certain, substantial, and beyond speculation and conjecture. See Se. Ark. Landfill, Inc. v. State, 313 Ark. 669, 858 S.W.2d 665 (1993). A mere fear or apprehension of danger, without more, is not sufficient to warrant injunctive relief for the abatement of a nuisance. See Milligan v. Gen. Oil Co., 293 Ark. 401, 738 S.W.2d 404 (1987). However, an activity can constitute a nuisance if it creates a substantial likelihood of danger in the future or it can be shown to a reasonable certainty that danger was actually threatened rather than merely anticipated. See id. Indeed, nuisances have been found when the property owners’ use and enjoyment of their property was made much more difficult, and the offensive activity created a risk of physical danger. See Osborne v. Power, 318 Ark. 858, 890 S.W.2d 570 (1994) (affirming the finding of a nuisance where an elaborate display of Christmas lights created a risk of physical danger to property owners, passing motorists, and pedestrians); Emerald Dev. Co. v. McNeill, 82 Ark. App. 193, 198, 120 S.W.3d 605, 609 (2003) (affirming the trial court’s finding of a nuisance based upon the dangerous aspect of airport configurations and the substantial likelihood that a midair collision would occur).
It is only the unreasonable use or conduct by one landowner which results in unwarranted interference with his neighbor that constitutes a nuisance. See Goforth, supra (citing Miller, supra). The findings of a trial judge as to the existence of a nuisance will not be overturned unless they are found to be clearly against a preponderance of the evidence. Miller, supra.
Numerous witnesses testified at the hearing that they saw planes flying at extremely low altitudes over the Hammer property and over County Road 207. Owen Tromberg, retired from the United States Air Force and a licensed pilot, testified that he observed a plane crossing the Hammer property at an altitude of approximately thirty feet and crossing County Road 207 at an altitude of approximately fifteen feet. Mr. Tromberg stated that he believed the flight activities to and from the ACM airfield were dangerous.
Dave Arnett, a former United States Marine, testified that he observed two full-scale planes cross County Road 207 and the Hammer property at an altitude of approximately twenty to thirty feet. According to Mr. Arnett, the full-scale planes flying over County Road 207 are a safety hazard. Mr. Arnett also complained about the noise from the full-scale planes circling over his residence near the ACM field.
Mark Sterling, retired from the United States Air Force and an airman who served as part of a military disaster recovery team, testified that on two occasions a plane taking off from the ACM airfield almost struck his vehicle on County Road 207 next to the Hammer property. Mr. Sterling said that he and the pilots had to take measures to prevent the planes and his vehicle from striking each other. Mr. Sterling testified that, in one instance, the pilot had to “hop the plane a little bit” to get over his vehicle during his landing, and in another instance, the pilot had to “pull hard” to clear his vehicle. Mr. Sterling testified that he thought it was unsafe for planes to land at the ACM airfield and that he considered the area “a major hazard.”
Jason Kissic, an RC plane pilot, testified that an observer on the Hammer property cannot see or hear a plane taking off from the ACM airfield until the full-scale plane is practically over the Hammer property. He testified regarding two incidents that had occurred while he was on the Hammer property. He stated that the first incident took place when he was acting as a spotter, and that as an RC plane was taxiing to take off, a V-tailed Bonanza took off and pulled to the right-hand bank. Mr. Kissic stated that the pilot of the Bonanza flew over the top of him “within fifty feet,” and that he “could see the whites of [the pilot’s passenger’s] eyes.” Mr. Kissic related that the incident was “so loud and abrupt, it was frightening.”
Mr. Kissic testified that, in a second incident, he was flying his RC plane, and a full-scale plane flew in close proximity to him. He stated that he feared for the safety of human life, and he has not flown RC planes at the Hammer property since the second incident.
Dale Locander, who has flown RC planes on the Hammer property, testified that he had observed a plane struggle to gain altitude while taking off from the ACM airfield and crossing the Hammer property at a low altitude. He also testified that he had seen airplanes fly low across County Road 207. David Powell, who lives near the ACM airfield, testified about the disruptive noises generated by the full-scale planes.
In its order, the circuit noted that many witnesses testified they observed planes flying at extremely low altitudes over the Hammer property and over County Road 207 and that each witness described the situation as dangerous. The circuit court also made findings regarding the glide angle, which reflects the horizontal feet a plane will fly for every vertical foot. Mr. Hammer testified that the glide angle was 20:1, while Mr. Severe of ACM testified that the glide angle was 15:1. The circuit court found:
With a 20:1 glide angle and a 212 feet touch down requirement (displaced runway), a plane landing from the south at the ACM airfield will enter the north end of the Hammer flying area at 35.6 feet above ground level (AGL), will cross the Hammer property line at 12.35 feet AGL, and will cross County Road 207 at 11.1 feet AGL. The same plane landing with a 15:1 glide ratio will enter the north end of the Hammer flying area at 47.4 feet AGL, cross the Hammer property line at 16.4 feet AGL and cross County Road 207 at 14.8 feet AGL. Planes making a left turn in or a right turn out will fly over the south end of the Hammer flying area at 96.6 to 127.4 AGL. In the unfortunate event a pilot fails to recognize the 212 foot runway displacement, he or she could enter the Hammer flying area at 25-33.3 feet AGL, cross the Hammer property line at 2.2 to 3 feet AGL and cross County Road 207 at .5 to .6 feet AGL. These figures all assume that the ground is level. In reality, part of the Hammer property is slightly higher than the ACM property.
The circuit court concluded that there was substantial, credible evidence that the manner in which ACM has operated its airport has created the possibility of serious resulting accidents and has put lives at risk. Further, the circuit court concluded that, because of the extremely low altitude that planes are flying near the Hammer home and in the RC flight path, excessive noise has been a problem.
In addition, the circuit court stated that it was not convinced that the proposed pattern change would eliminate the nuisance. The circuit court found that, while a pattern change would reduce the noise at the Hammer home, planes would still be flying at extremely low altitudes in the Hammer RC flight area and over County Road 207. The circuit court also found that ACM does not have a permanent tower or person on duty to inform incoming aircraft of the flight pattern.
The circuit court’s findings are not clearly against the preponderance of the evidence. Evidence at trial revealed that ACM’s operation of its airport created a risk of serious harm to persons on the Hammer property and to motorists driving on County Road 207. Further, regardless of the cost to ACM and regardless of the benefit to Carroll County, this court has made it clear that “every man must so use his own property as not to injure that of his neighbor; and the fact that he has invested much money and employs many men in carrying on a lawful and useful business upon his land does not change the rule.” Meriwether Sand & Gravel Co. v. State, 181 Ark. 216, 229, 26 S.W.2d 57, 62 (1930) (quoting Strobel v. Kerr Salt Co., 58 N.E. 142, 147 (N.Y. 1900)). “[I]t matters not how well constructed or conducted a [business] may be, it is nevertheless a nuisance if it is so built as to destroy the comfort of persons owning and occupying adjoining premises, creating annoyances which render life uncomfortable, and it may be abated as a nuisance.” Baker v. Odom, 258 Ark. 826, 831, 529 S.W.2d 138, 141 (1975) (quoting Durfey v. Thalheimer, 85 Ark. 544, 552, 109 S.W. 519, 522-23 (1908)). The circuit court did not err in concluding that ACM’s operation of the airport was a nuisance.
Still, ACM contends that it has the right, pursuant to Arkansas Code Annotated section 27-116-102, to lawfully use its property for airplane operations. Section 27-116-102(c) provides:
Flight in aircraft over the lands and waters of this state is lawful, unless at an altitude low enough to interfere with the then-existing use of which the land or water, or space over the land or water, is put by the owner, or unless so conducted as to be dangerous or damaging to persons or property lawfully on the land or water beneath.
Stated another way, section 27-116-102(c) makes flight lawful, unless such flight amounts to a nuisance, trespass, or otherwise poses a danger to the ground. See Rodgers v. Erickson Air-Crane Co., LLC, 740 A.2d 508, 513-14 (Del. Super. Ct. 1999) (construing a Delaware code provision that contained identical language to Arkansas Code Annotated section 27-116-102(c)). See also Brandes v. Mitterling, 196 P.2d 464, 468 (Ariz. 1948) (“Whether in landing, taking off, or otherwise, flight over another’s land, so low as to interfere with the then existing use to which the land is put, is expressly outside the statutory definition of lawful flight; and being an unprivileged intrusion in the space above the land, such flight is a trespass.”) (citing Restatement (First) of Torts § 159 (1934)); Brentenson Wholesale, Inc. v. Ariz. Pub. Serv. Co., 803 P.2d 930, 934 (Ariz. Ct. App. 1990) (“Overflights can constitute a trespass.”).
Here, the planes flew at an altitude low enough to interfere with the then-existing use of the Hammers’ property and posed a danger to persons on the land beneath. Such flight amounted to a nuisance; therefore, it is not “lawful” flight pursuant to Arkansas Code Annotated section 27-116-102(c).
ACM’s final argument relates to damages, which were not sought by the Hammers. ACM appears to assert that the circuit court erred when it enjoined ACM’s operation of the airfield because prior to entering an injunction to abate a nuisance, the circuit court is required to find damage to the property. There is no requirement that the circuit court is required to find physical damage to the property prior to issuing an injunction to abate the nuisance. See Osborne, supra. Moreover, there is no requirement in section 27-116-102(c) that an injured party must seek damages to maintain a nuisance suit. The Hammers demonstrated that the operation of the airport interfered with their then-existing use of their property and that the operation of the airport was so conducted as to be dangerous or damaging to persons or property lawfully on the land beneath.
For the foregoing reasons, we hold that the circuit court did not abuse its discretion in issuing an injunction to enjoin ACM from using its airfield for the purposes of allowing airplanes to land and depart therefrom.
Affirmed.
We note that, in its point on appeal, ACM cites to Arkansas Code Annotated section 27-116-101 (Repl. 1994); however, section 27-116-101 has no bearing on the issues in the instant appeal, and ACM cites to section 27-116-102 in its argument.
The court notes that, although the FederalAviation Act gives the federal government exclusive sovereignty over United States airspace, the area of land-use regulation is still within the purview of state government. Emerald Dev. Co. v. McNeill, 82 Ark. App. 193, 198, 120 S.W.3d 605, 609 (2003) (citing Gustafson v. City of Lake Angelus, 76 F.3d 778 (6th Cir. 1996), cert. denied, 519 U.S. 823 (1996); Condor Corp. v. City of St. Paul, 912 F.2d 215 (8th Cir. 1990); 49 U.S.C.S. § 40120(c) (1998); and 14 C.F.R. § 157.7(a) (2003)).
Physical harm does not necessarily mean direct physical damages to the premises. See Osborne v. Power, 318 Ark. 858, 890 S.W.2d 570 (1994), cert. denied, 515 U.S. 1143 (1995). In Osborne, we noted that nuisances can exist when the property owners’ use and enjoyment of their property was made much more difficult, and the offensive activity was abusive to senses of hearing and smell. 318 Ark. at 862, 890 S.W.2d at 572 (citing Se. Landfill, supra (smells from landfill); Higgs v. Anderson, 14 Ark.App. 113, 685 S.W.2d 521 (1985) (noise from dog kennel); Baker v. Odom, 258 Ark. 826, 529 S.W.2d 138 (1975) (noise &om a motorcycle race track)).
In its brief on appeal, ACM makes a passing reference to the circuit court’s conclusion that the operation of the airport constituted a trespass, but it does not direcdy challenge the conclusion, nor does it develop any argument demonstrating error. | [
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Annabelle Clinton Imber, Justice.
Appellant Wilson Antonio Price was convicted by a Pulaski County jury of the capital murder of Keith Harris and sentenced to life imprisonment without the possibility of parole. He now appeals, alleging one point of error: that the circuit court erred in denying his motion for directed verdict, because the State failed to introduce substantial evidence that he caused the death of the victim under circumstances manifesting extreme indifference to the value of human fife. Because Price was sentenced to fife imprisonment, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(2) (2007). We find no error and affirm.
On the night of March 3, 2006, brothers Mark and Terry Harris were driving in North Little Rock with their cousin, Keith. Mark drove his uncle’s blue Dodge Stealth, while Terry sat in the front passenger’s seat and Keith sat in the back. At one point, Mark saw an orange Pontiac Grand Am that he believed was being driven by a friend. He followed the car and motioned for it to stop. The Grand Am eventually pulled up to the keypad at the entrance gate of Shorter College Gardens Apartments. At that point, Mark had stopped at a nearby stop sign. Upon realizing that the car did not belong to his friend, he started to pull away. He then saw a person lean out of the driver’s side window of the Grand Am and fire a gun. Both Mark and Terry recognized the shooter as Price, with whom they were acquainted. Mark yelled out the window, identifying himself to Price. Terry then informed Mark that Keith had been shot. Mark testified that when he yelled at Price, telling him that he had hit Keith, Price looked surprised. Mark then drove to Baptist Memorial Medical Center in North Little Rock. Keith died shortly thereafter, with the cause of death being identified as a gunshot wound to the head. Dr. Charles Kokes, the chief medical examiner at the Arkansas State Crime Laboratory, testified that Keith’s atypical gunshot wound was consistent with the bullet hitting the outside of the car before it entered into his body.
Detective Mike Cook of the North Little Rock Police Department conducted a search of the crime scene and found a shell casing from a forty-five caliber handgun. He estimated that the shell casing was discovered approximately five feet from the keypad at the Shorter Gardens gate. Officer Daniel Haley, also of the North Little Rock Police Department, arrested Price on April 7, 2006, pursuant to a warrant. He testified that, after he pulled Price’s vehicle over and before Price exited the vehicle, he observed Price lean over into the passenger’s side floorboard. When Price’s vehicle was inventoried later, a loaded forty-five caliber handgun was located in the passenger’s side floorboard. According to the testimony of James Looney, a firearm and tool mark examiner at the Arkansas State Crime Laboratory, both the bullet recovered from Keith Harris’s head and the shell casing found at the crime scene originated from the gun that was found in Price’s vehicle.
Price’s only defense at trial was self-defense. He alleged that he was being chased and that the occupants of the Dodge Stealth fired approximately four shots at him. He further contended that, when he reached Shorter Gardens, he was not able to open the gate before the Dodge Stealth pulled up behind him. He then fired a shot, hoping to scare the shooters away. Both Mark and Terry Harris disputed Price’s narrative, testifying instead that no one in their car carried a gun and that no shots were fired from their car. Investigator John Desitzlets of the North Little Rock Police Department, who searched and photographed the Grand Am, confirmed that there were no bullet holes in the car. He also testified that his search of the Dodge Stealth revealed no weapons or reasons to believe a gun had been fired from that car. Katrina Green, the owner of the Grand Am who had loaned the car to Price, verified that she found no bullet holes or other evidence to cause her to believe that her car had been fired upon. Detective Cook’s search of the crime scene revealed no other shell casings or bullet holes. Finally, Tavio Garrison, who was in the Grand Am with Price at the time of the shooting, testified that no shots were fired from the Dodge Stealth and that neither he nor Price was worried about the car following them. He also stated that, although he initially told Price’s attorney that shots were fired from the Dodge Stealth, he had made those statements only because he had received telephone calls from Price and others pressuring him to corroborate Price’s story. Garrison testified that Price had used PCP on the night of the shooting, and a photograph of a bottle of brandy found in the car was introduced.
Price introduced a tape of a 911 call, intended to show that he called for help when he was being fired upon by the occupants of the Dodge Stealth. However, the 911 operator testified that nothing during the call indicated it was made during a car chase, and that there were no audible gunshots on the tape. Tavio Garrison testified that he never heard Price call 911. He also denied hearing his voice in the background on the tape. The State suggested that Price placed the call after the shooting and after he and Garrison left the Grand Am.
Price was charged by felony information with purposely discharging a firearm from a vehicle at a person or vehicle he knew or had good reason to believe to be occupied by a person and thereby causing the death of Keith Harris under circumstances manifesting extreme indifference to the value of human life, a charge constituting capital murder under Ark. Code Ann. § 5-10-101 (a) (10) (Repl. 2006). The information also included a felon-in-possession charge, which was later severed. From the capital-murder conviction, Price filed a timely notice of appeal.
On appeal, Price argues that the State failed to prove that he caused Keith Harris’s death under circumstances manifesting extreme indifference to the value of human life. Specifically, he contends the evidence did not show that he intended to kill Keith Harris. According to Price, when the facts in other cases have been such that the jury could have inferred an actual intent to kill, this court has found substantial evidence supporting the conclusion that the death was caused under circumstances manifesting extreme indifference to the value of human life. Here, he argues, the jury could not have inferred that he intended to kill Keith Harris, as he did not shoot at close range, did not fire multiple shots, and could not have known that a person was in the backseat of the Dodge Stealth because it was dark outside and the windows of both cars were tinted. In response, the State argues that specific intent is not required to prove circumstances manifesting extreme indifference to the value of human life under the unlawful-discharge portion of the capital-murder statute. Rather, the statute and case law require only deliberate conduct that results in the death of a person.
An appeal from a denial of a motion for directed verdict is a challenge to the sufficiency of the evidence. Flowers v. State, 373 Ark. 119, 282 S.W.3d 790 (2008). When 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 enough to compel a conclusion one way or the other beyond speculation or conjecture. Id. The reviewing court views the evidence in the light most favorable to the verdict, and considers only evidence that supports the verdict. Id.
Circumstantial evidence may constitute substantial evidence to support a conviction. Id. The longstanding rule in the use of circumstantial evidence is that, to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Id. The question of whether the circumstantial evidence excludes every 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.
The credibility of witnesses is an issue for the jury and not the court. Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006). The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.
In accordance with Ark. Code Ann. § 5-10-101 (a)(10), a person commits capital murder if the person purposely discharges a firearm from a vehicle at a person or at a vehicle, conveyance, or residential or commercial occupiable structure that he or she knows or has good reason to believe to be occupied by a person, and thereby causes the death of another person under circumstances manifesting extreme indifference to the value of human life. We first note Price’s suggestion that he could not have manifested such indifference because he was not aware that there was a backseat passenger in the Dodge Stealth. The statute clearly requires only that the person know or have good reason to believe that the vehicle is occupied by a person. Ark. Code Ann. § 5-10-101(a)(10). Thus, it is not a requirement that a person shooting in the direction of a vehicle know where the ultimate victim is actually located inside the vehicle.
This court has consistently defined circumstances manifesting extreme indifference to the value of human life as deliberate conduct that culminates in the death of another person. Jefferson v. State, 372 Ark. 307, 276 S.W.3d 214 (2008); Wyles v. State, 368 Ark. 646, 249 S.W.3d 782 (2007); Branstetter v. State, 346 Ark. 62, 57 S.W.3d 105 (2001); Coulter v. State, 343 Ark. 22, 31 S.W.3d 826 (2000); Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996). We have also stated that extreme indifference requires actions that evidence a mental state on the part of the accused to engage in some life-threatening activity against the victim. Perry v. State, 371 Ark. 170, 264 S.W.3d 498 (2007). We noted in Perry that “the victim” refers to the person killed, rather than some “specific victim” deliberately or purposefully killed. Id.
In the only case previously before this court involving the unlawful-discharge portion of the capital-murder statute, Ark. Code Ann. § 5-10-101(a)(10), we made clear that the act requiring the purposeful mental state is the act of discharging a firearm from a vehicle. Hardman v. State, 356 Ark. 7, 144 S.W.3d 744 (2004). The end result of that purposeful act is the causing of a death under circumstances manifesting extreme indifference to the value of human life, which means that the defendant acts with deliberate conduct that culminates in the death of a person. Id. (citing McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002)). We held in Hardman that, because the appellant requested a jury instruction on the lesser-included offense of first-degree murder that required the purposeful intent to be directed at the act of causing the death, rather than the act of discharging a firearm from a vehicle, the circuit court did not err in declining to give the proffered instruction. Id. In so holding, we noted that the extreme-indifference requirement of Ark. Code Ann. § 5-10-101(a)(10) has never been held to encompass a purposeful mental state. Id.
Under this case law, Price is incorrect in his assertion that the State was required to prove that he intended to kill Keith Harris in order to demonstrate that he manifested extreme indifference to the value of human life. Price’s conduct in firing the gun in the direction of the Harris vehicle was clearly deliberate, and it culminated in the death of Keith Harris. See Jefferson v. State, supra. Moreover, Price’s actions indicated an intent to engage in life-threatening activity against Keith Harris. See Perry v. State, supra. He makes no argument, and certainly would not be able to establish, that he did not consider the shooting to be life-threatening, even if it were only intended as a “warning shot.” Additionally, under Perry v. State, supra, Price need not have intended to engage in life-threatening activity against Keith Harris specifically; it is sufficient that he shot in the direction of a car he knew to be occupied.
In accordance with Hardman v. State, supra, Price’s conduct evidencing a purposeful mental state was his firing of the gun from his vehicle toward the Harris vehicle, with the knowledge that the Harris vehicle was occupied. He need not have acted purposely with regard to the killing of Keith Harris; rather, he need only have acted purposely with regard to shooting the firearm at a car he knew or had good reason to believe was occupied. Because his actions were deliberate and culminated in the death of another person, Price manifested extreme indifference to the value of human life. The fact that he fired only one shot or that he did not fire at close range would not be relevant under the controlling precedent.
This court has held that extreme indifference is “akin to” intent. McCoy v. State, supra (quoting Vowell v. State, 276 Ark. 258, 634 S.W.2d 118 (1982)). In other words, “the attendant circumstances themselves must be such as to demonstrate the culpable mental state of the accused.” Martin v. State, 261 Ark. 80, 547 S.W.2d 81 (1977). Thus, the circumstances manifesting extreme indifference to the value of human life are “part of the proof of the actor’s mental state.” McCoy, 347 Ark. at 922, 69 S.W.3d at 435. Such language would appear to lend support to Price’s contention that, in order to demonstrate circumstances manifesting extreme indifference to the value of human life, the State must prove intent on his part to cause the death of Keith Harris. However, we also stated the following in McCoy:
In the case of capital murder under Ark. Code Ann. § 5-10-101(a)(9) (Kepi. 1997), which requires proof that the defendant knowingly caused the death of a person fourteen years old or younger under circumstances manifesting extreme indifference, this court has held that the requirement of extreme indifference goes to the perpetrator’s intent, such that he must act with deliberate conduct that culminates in the death of a person.
Id. at 922-23, 69 S.W.3d at 436 (citing Branstetter v. State, supra). In other words, the intent required is the intent to engage in the conduct that ultimately culminates in the death of a person, and not the intent to cause the death of a person. As we stated in Hardman v. State, supra, wherein we applied the same definition of extreme-indifference to the unlawful-discharge portion of the statute at issue here, the act requiring the purposeful mental state under Ark. Code Ann. § 5-10-101(a)(10) is the act of discharging a firearm from a vehicle, and not the act of causing a death. Thus, this court’s holdings in Hardman and McCoy are in fact harmonious. Here, the attendant circumstances demonstrate Price’s culpable mental state, as he knew before he fired a shot at the other vehicle that it was occupied by a person.
Although our case law does not explicitly require intent to cause death in order to establish circumstances manifesting extreme indifference to the value of human life, Price nonetheless cites several cases as examples meant to support the notion that, in our cases finding extreme indifference, the jury is always able to infer an intent to kill from the facts. For example, in Porter v. State, 358 Ark. 403, 191 S.W.3d 531 (2004), a felony-murder case, the appellant admitted pointing a loaded gun at the victim during a robbery and had fired the gun at the unarmed victim from fewer than three feet away. In Williams v. State, 351 Ark. 215, 91 S.W.3d 54 (2002), also a felony-murder case, all witnesses who testified agreed that the victim was unarmed. Moreover, one witness testified that she observed the appellant stand over the victim’s fallen body and continue to shoot, while another testified that he saw the appellant hold the victim in a headlock and shoot him in the head. Id. Additionally, the head wound was inflicted at close range. Id. In both of these cases, we affirmed the convictions and the jury’s determinations that the deaths were caused under circumstances manifesting extreme indifference to the value of human life.
While Price may be correct in his assertion that the evidence in Porter and Williams was sufficient for the jury to infer an intent on the part of the accused to kill the victim, he also cites other cases in which there was little, if any, evidence to support such an inference. In Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996), we noted that the appellant had admitted to every element of capital-felony murder during his trial testimony, with the possible exception of circumstances manifesting extreme indifference to the value of human life. We stated: “That element is provided by the mere fact of pointing a loaded gun at the deceased in the course of a robbery, whether or not there was an intent to shoot.” Id. at 26, 931 S.W.2d at 80. We cited this holding in Jordan v. State, 356 Ark. 248, 147 S.W.3d 691 (2004), wherein the appellant claimed that the shooting was the result of an accidental discharge of the gun. We emphasized that the rule is operable even in the absence of an actual intent to shoot. Id. Finally, in Price v. State, 347 Ark. 708, 66 S.W.3d 653 (2002), we expanded the rule in holding that the appellant’s mere act of pointing a loaded gun at another person during an argument was a manifestation of extreme indifference to the value of human life, regardless of whether there was an actual intent to shoot. In short, this court has concluded that evidence of an actual intent to kill is not required to establish circumstances manifesting extreme indifference to the value of human life. Thus, Price’s assertion to the contrary is without merit.
According to Price’s own testimony, he intentionally raised his gun and fired a shot. Three witnesses, Mark Harris, Terry Harris, and Tavio Garrison, testified that they observed Price lean out of the driver’s side window and turn in the direction of the Harris vehicle. Therefore, even in light of Price’s suggestion that the discharge of the gun was merely a warning shot, he cannot dispute that the shooting was deliberate. Moreover, he cannot and does not dispute that his act of firing the gun culminated in the death of Keith Harris. His actions evidenced an intent to engage in life-threatening activity against the occupants of the vehicle at which he fired. For these reasons, we will not disturb the jury’s determination that Price caused the death of Keith Harris under circumstances manifesting extreme indifference to the value of human life.
Pursuant to Ark. Sup. Ct. R. 4-3 (h), the record in this case has been reviewed for all objections, motions, and requests made by either party, which were decided adversely to Price, and no prejudicial error has been found.
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Robert L. Brown,Justice.
Appellants Teresa Gray, Keith Broach, Renita Thompson, Steven Thompson, Eleanor Burress, and Mamita Bisbee, individually and as representatives of similarly situated patrons and taxpayers of the Little Rock School District ofPulaski County, Arkansas (collectively “taxpayers”), appeal from July 30, 2007 and August 8, 2007 orders granting summary judgment to appellees Katherine Mitchell, Michael Daugherty, Charles Armstrong, Dianne Curry, Melanie Fox, Baker Kurrus, and Larry Berkley, in their official capacities as members of the Board of Education of the Little Rock School District; the Board of Education of the Little Rock School District of Pulaski County, Arkansas; and the Little Rock School District of Pulaski County, Arkansas (collectively “Board”). The Board’s motion to dismiss on grounds of mootness is denied. We affirm the summary judgment.
This case arose from a 4-3 vote by the Little Rock School Board taken at a May 24, 2007 School Board meeting to terminate then-superintendent Dr. Roy G. Brooks without cause and to pay him severance pay as provided for in his employment contract with the School Board. On June 13, 2007, the taxpayers filed suit in circuit court and contended that paying severance pay to Dr. Brooks “for not working” constituted an illegal exaction in violation of Arkansas statutory law and the Arkansas Constitution. The complaint specifically alleged that a severance payment would violate article 14, § 3(b) of the Arkansas Constitution, which provides for a uniform rate of ad valorem property tax and which states that school funds derived from ad valorem property taxes shall be used “solely for maintenance and operation of schools.” The taxpayers attached a copy of Dr. Brooks’s employment contract with the School Board to their complaint, along with two amendments that extended the contract.
On June 25, 2007, the Board filed a motion to dismiss the taxpayers’ complaint under Rules 12(b) and 8(a), of the Arkansas Rules of Civil Procedure (2007), or, alternatively, for summary judgment under Rule 56(b) of the Arkansas Rules of Civil Procedure. After responsive pleadings were filed and a hearing held, the circuit court denied the motion to dismiss but granted the motion for summary judgment.
On August 8, 2007, in response to a Rule 52(b) motion by the taxpayers, the circuit court entered an additional order in which it held that the actions of the School Board were constitutional pursuant to article 14, §§ 2 and 3 of the Arkansas Constitution.
I. Burden of Proof for Summary fudgment
For their appeal, the taxpayers contend as their first point that the Board failed to establish a prima facie entitlement to summary judgment and, accordingly, did not meet its burden of proof. They further assert that the circuit court erred in finding that the taxpayers had the burden of introducing evidence to establish the existence of a material question of fact. The taxpayers note that the circuit court found in its order that the Board had attached a copy of the contract between the School Board and Dr. Brooks to its motion for summaryjudgment, while in fact the only contracts attached to that motion were between the School Board and previous superintendents.
The taxpayers also point out that no affidavits were attached to the motion for summaryjudgment. They emphasize that, in the absence of reliance by the circuit court on any proof outside of the pleadings in granting summary judgment, it was inconsistent for the circuit court to deny the Board’s motion to dismiss but then grant the Board’s motion for summaryjudgment.
The taxpayers next claim that, by focusing on the School Board’s discretion and by failing to balance that discretion against the constitutional limitations on the expenditure of school district funds, the circuit court, in effect, found that the Board had the discretion to violate the Arkansas Constitution. They note that the Board is a creature of the Arkansas General Assembly and can only exercise what power it is given under the Arkansas Constitution and by statute. In sum, they urge that a material question of fact remains: whether or not the payment of severance pay to a terminated school superintendent is an operations-and-maintenance expenditure and, therefore, allowable under the Arkansas Constitution.
The Board counters that whether severance pay is necessary for the operation and maintenance of public schools and is therefore constitutional is not a question of fact that can be established by testimony but rather is a question of law. The circuit court, it argues, made a specific finding that there were no disputed material facts and listed several material facts in its order that were undisputed. Where the facts are not disputed, the Board concludes, it is appropriate to make a legal determination by means of summary judgment.
Our standard of review for summary judgment has been often stated:
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. 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. After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable minds might reach different conclusions from those undisputed facts. 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. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties.
Sykes v. Williams, 373 Ark. 236, 239-40, 283 S.W.3d 209, 213 (2008).
We disagree with the taxpayers that the Board failed to meet its burden of showing there was no genuine issue of material fact and, thus, the issue could not be decided as one of law. In its order of July 30, 2007, which granted summary judgment to the Board, the circuit court first quoted the Termination Clause from the School Board’s three-year contract with Dr. Roy Brooks set out under Paragraph 11:
E. Unilateral Termination by Board of Education. The BOARD may, at its option, and by a minimum of ninety (90) days notice to SUPERINTENDENT, unilaterally terminate this contract. In the event of such termination, the DISTRICT shall pay to SUPERINTENDENT, as severance pay, all of the aggregate salary allowances and other compensation he would have earned under this employment contract from the actual date of termination to the termination date set forth in this employment contract, unless otherwise agreed to.
Though the circuit court misspoke when it said in its order that the employment contract was attached to the Board’s summary-judgment motion, the contract was properly before the court as an exhibit to the taxpayers’ complaint.
The circuit court then concluded in its summary-judgment order:
14. The defendants attached a copy of the contract between the Board and Dr. Brooks to the Motion for Summary Judgment. The signatures of the members of the Board on the contract are evidence of the Board’s utilization of its discretion to include the unilateral termination provision in the contract.
15. The plaintiffs’ Response to Motion to Dismiss orfor Summary Judgment had two attachments, an Affidavit of Teresa Gray and Minutes of the May 24, 2007, Special Meeting of the Board of Directors.
16. The Minutes of the May 24,2007, Special Meeting provide evidence of the Board’s utilization of its discretion to invoke the unilateral termination provision of the contract.
17. After the defendants established a prima facie entitlement to summary judgment, the plaintiffs were required to meet proof with proof and demonstrate the existence of one or more disputed material issues of fact. The plaintiffs failed to provide any evidence to meet their burden of proving by clear and convincing evidence that the Board clearly abused its discretion in either including the unilateral termination provision in the contract or in choosing to exercise the unilateral termination provision.
With the employment contract and the May 27, 2007 minutes of the School Board before it, which included the motion and vote to terminate Dr. Brooks under Paragraph 11E of the employment contract, the circuit court had the pertinent, undisputed facts necessary to decide the maintenance-and-operation issue under the Arkansas Constitution. Moreover, the taxpayers provided nothing in the way of proof to show that there was any genuine issue of material fact that had to be resolved in order to decide the constitutional issue, which was their obligation under Arkansas Rule of Civil Proceedure 56(c)(2). We hold that, absent a showing of a genuine issue of material fact, the question of whether payment of severance pay as part of the termination of Dr. Brooks pursuant to the employment contract falls under the constitutional rubric of maintenance and operation of the public schools can be decided as a matter of law. We discern no valid reason to remand this matter to the circuit court to determine factual issues.
There is no reversible error on this point.
II. Constitutionality of Severance Pay
Turning next to the issue of the constitutionality of Dr. Brooks’s severance pay, the taxpayers claim that the payment of $656,000 to Dr. Brooks for what they term to be “not working” is unconstitutional under three provisions of the Arkansas Constitution. First, they argue that, under article 14, § 3, public school funds derived from ad valorem property taxes can be used only for the maintenance and operation of schools. In order to qualify, they contend, the payment of funds must be directly and immediately connected with the public school system. Paying an employee not to work, they continue, does not primarily inure to the benefit of school purposes; nor does it have a sufficient educational nexus. The taxpayers also point to the preliminary-hearing testimony of an accountant, James Williams, III, who opined that severance pay would not be classified as an operational cost under governmental accounting practices.
The taxpayers argue, in addition, that the payment of severance pay violates article 14, § 2 of the Arkansas Constitution, which provides that no money or property belonging to school districts can be used “for any other reason than for the respective purposes to which it belongs.” The taxpayers concede that neither party raised this issue in the proceedings before the circuit court but observe that the circuit court specifically held in its summary-judgment order that the Board’s actions did not violate this provision. They contend that, in order to pass muster under article 14, § 2, an expenditure must benefit the school district and must be absolutely necessary for the operation and maintenance of the school district. The payment to Dr. Brooks fails this test, they maintain. The taxpayers again claim that the Board has no discretion to violate the constitution.
The taxpayers urge, as a final point, that the payment of public-school funds as severance pay is prohibited by the due process clause, which is found at article 2, § 8 of the Arkansas Constitution, because it results in an expenditure of public school funds that inures primarily to private, rather than public, benefit. Although the taxpayers concede that this argument was not raised before the circuit court, they claim that, because this is a taxpayer’s suit, they represent the citizens as a whole and could not waive an argument that should have been asserted.
The Board points out, in response, that the final payment to Brooks was not only severance pay but also pay for retirement, attorneys’ fees, taxes, and the settlement of a lawsuit. It notes that this court has previously recognized that the school board of each school district is vested with broad discretion over such matters and that only if a clear abuse of discretion is shown by clear and convincing evidence will a court interfere with the exercise of that discretion. The Board points out that the taxpayers failed to challenge the terms of the contract with Dr. Brooks when it was entered into. Nor, the Board argues, do the taxpayers contend that the School Board lacked the power to terminate Dr. Brooks. Instead, the Board maintains that the taxpayers are urging the Board to breach its contract, which could result in legal expenses for the School District.
Summarizing the standard of review for constitutional interpretation, this court has said:
When interpreting the constitution on appeal, our task is to read the laws as they are written, and interpret them in accordance with established principles of constitutional construction. It is this court’s responsibility to decide what a constitutional provision means, and we will review a lower court’s construction de novo. We are not bound by the decision of the trial court; however, in the absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Language of a constitutional provision that is plain and unambiguous must be given its obvious and common meaning. Neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision Just as we will not interpret statutory provisions so as to reach an absurd result, neither will we interpret a constitutional provision in such a manner.
State v. Oldner, 361 Ark. 316, 326, 329, 206 S.W.3d 818, 821-22, 824 (2005) (internal citations and quotation omitted).
The Arkansas Constitution contains two provisions specifically limiting the use to which public school funds can be put. article 14, § 2 provides that “[n]o money or property belonging to the public school fund, or to this State, for the benefit of schools or universities, shall ever be used for any other than for the respective purposes to which it belongs.” Furthermore, since its amendment in 1996, Article 14, § 3, provides that all of the money distributed to school districts as a result of the uniform ad valorem property tax of twenty-five mills is to be used “solely for maintenance and operation of the schools.” Ark. Const, art. 14, § 3 (as amended by Ark. Const, amend. 74). The only definition of “maintenance and operation” expenses contained in section 3 is that they include “such expenses for the general maintenance and operation of schools as may be defined by law.” The taxpayers have made no argument on appeal that the Board has violated any statutory provision regarding school expenditures.
This court has previously interpreted article 14, § 2, and said that “[t]he Constitution . . . prohibit^] the Legislature from applying the common school fund to any other branch of state expenditures except that immediately and directly connected with the establishment and maintenance of a common school system.” Little River County Bd. of Educ. v. Ashdown Special Sch. Dist., 156 Ark. 549, 556, 247 S.W.70, 72 (1923). Thus, a school board, like the legislature, is limited to spending school money for expenses immediately and directly connected with the establishment and maintenance of schools.
This court has also said that “the proper authorities (such as the trustees of a school district) may, in their discretion, make any expenditure of the [public school] funds which is absolutely necessary for the proper maintenance of the school intrusted to their charge.” Bd. of Educ. of Lonoke County v. Lonoke County, 181 Ark. 1046, 1054, 29 S.W.2d 268, 272 (1930). It is clear, nonetheless, that, by using the term “absolutely necessary,” this court did not intend to limit school boards to those expenditures without which there could be no public schools.
In Lonoke County, for example, this court noted:
They [the proper authorities] might properly expend a portion of the money in repairing or improving the school building, or in fitting it with proper appliances and conveniences. They might insure the school property against loss by fire, and pay the premium from the school fund. By a parity of reasoning we have no hesitation in holding that funds derived from local taxation within a school district may properly be expended by the trustees of the district in protecting or preserving the right of local taxation for educational purposes by the employment of an attorney, or in other legitimate expenses necessary for presenting their rights in the adjudication of the case.
Id. at 1054-55, 29 S.W.2d at 272. Given the list of expenditures that the court noted would be permissible, there can be no doubt that the court intended “absolutely necessary” to mean that which is convenient, useful, appropriate, suitable, proper or conducive to the proper maintenance of the schools. Moreover, this court has said that “any use of school funds raised from taxation that results in benefits to school funds or property or aids in the stated purposes for which these funds may be expended would not be an unconstitutional diversion.” Rainwater v. Haynes, 244 Ark. 1191, 1195, 428 S.W.2d 254, 257 (1968).
We conclude from this court’s precedent that exactly which expenditures should be made to benefit a school district is a matter for the School Board to determine. This court’s role is merely to ensure that school money is not diverted to an unrelated purpose, such as to subsidize road improvements or to pay a county officer for duties unrelated to the operation of the schools. Special Sch. Dist. of Fort Smith No. 100 v. Sebastian County, 277 Ark. 326, 330, 641 S.W.2d 702, 705 (1982).
Although this court has not previously interpreted the current version of art. 14, § 3, we hold that it requires nothing more than article 14, § 2. Under section 2, an expenditure must be “immediately and directly connected with the establishment and maintenance of a common school system.” Little River County Bd. of Educ., 156 Ark. at 556, 247 S.W. at 72. Clearly, any expenditure that meets this requirement will be one that is “for maintenance and operation of the schools.” Ark. Const. art. 14, § 3 (as amended by Ark. Const. amend. 74); see Rainwater, 244 Ark. at 1195, 428 S.W.2d at 257 (analyzing together the prohibition under article 14, § 2 against “the use of money or property belonging to the state school fund for any other than the purpose to which it belongs” and the prohibition under a previous version of article 14, § 3, against “the annual tax voted by the electors of the district from being used for any purpose other than the maintenance of schools, the erection and equipment of school buildings and the retirement of existing indebtedness”).
Without question, the payment of a salary and benefits to a superintendent is both “immediately and directly connected with the establishment and maintenance of a common school system” and “absolutely necessary” for the maintenance and operation of schools. Nevertheless, the taxpayers argue in their brief that “paying $656,000 to Dr. Brooks for not working benefits only Dr. Brooks — not the school.” To the extent that the payment to Dr. Brooks represented severance pay, this argument overlooks the fact that the payment allowed the School Board to remove Dr. Brooks from his position and replace him with a person who, in the School Board’s opinion, would be a better superintendent. The School Board, while operating and maintaining the School District’s schools, determined that the School District could be operated and maintained in a better manner by a different superintendent. We have no doubt that this is a determination that falls within the “broad discretion . . . vested in the board of directors of each school district in the matter of directing the operation of the schools.” Safferstone v. Tucker, 235 Ark. 70, 72, 357 S.W.2d 3, 4 (1962); see also Whellis v. Franks, 189 Ark. 373, 72 S.W.2d 231 (1934).
The taxpayers also contend that the payment to Dr. Brooks violated the due process clause of article 2, § 8, of the Arkansas Constitution. Although this argument was not raised below or ruled on by the circuit court, the taxpayers argue that this court should nonetheless consider it. This court has previously addressed a like argument raised in an illegal-exaction case, saying, “[w]e have no hesitancy in considering the due process clause as well [as the arguments made by the parties] for in a taxpayer’s suit the plaintiff represents the citizens as a whole and cannot be permitted to waive contentions that should be asserted.” Chandler v. Bd. of Trs. of Teacher Ret, Sys., 236 Ark. 256, 258, 365 S.W.2d 447, 448 (1963) (citation omitted).
However, even if this court may consider the argument, it has no merit. This court has stated that “[n]o principle of constitutional law is more fundamental or more firmly established than the rule that the State cannot, within the limits of due process, appropriate public funds to a private purpose. . . . The objects for which money is raised by taxation must be public, and such as subserve the common interest and well being of the community required to contribute.” Id. at 258, 365 S.W.2d at 448-49 (citation and quotation omitted). The taxpayers’ attempts to characterize the payment to Dr. Brooks as private and one solely for his benefit must fail. As already stated, the severance payment was made for the public purpose of removing Dr. Brooks to allow for the hiring of a new, and, in the School Board’s judgment, a preferable superintendent to lead the Little Rock Public Schools.
III. Motion to Dismiss — Mootness
Having determined that the circuit court’s decision should be affirmed, we turn to the Board’s motion to dismiss for mootness premised on the fact that the total severance payment has already been made to Dr. Brooks.
On August 24, 2007, the Board moved to dismiss this appeal, arguing that it had been rendered moot by the fact that all payments to Dr. Brooks and other parties that were being made as a result of Dr. Brooks’s termination would be completed by the close of business on August 24. This court passed on deciding this motion at that time, preferring instead to take it up when the case was submitted for our review.
The Board emphasizes that Dr. Brooks has not been joined as a party to this action, nor have the members of the School Board been sued in their individual capacities. The Board maintains, as a result, that no relief is available to the taxpayers, because any order to refund money would require the School District to pay itself back from tax money. Moreover, the Board argues that Dr. Brooks and the other payees were indispensable parties who should have been joined to the action pursuant to Rule 19 of the Arkansas Rules of Civil Procedure.
The Board relies, in general, on the principle that this court will not review moot cases and argues that no exception exists for the case at hand, which involves a unique settlement that encompasses not only severance pay, but also the settlement of litigation in federal court, the payment of attorneys’ fees, and the cooperation of Dr. Brooks in future matters with respect to litigation involving the School District. Therefore, the Board claims that this case is not one which is likely to arise again.
Our law regarding mootness is well established in this state:
As a general rule, appellate courts of this state will not review issues that are moot. To do so would be to render advisory opinions, which we will not do. Generally, a case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. We have recognized two exceptions to the mootness doctrine. The first one involves issues that are capable of repetition, but that evade review, and the second one concerns issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation.
Potter v. City of Tontitown, 371 Ark. 200, 205, 264 S.W.3d 473, 478 (2007) (citations omitted). “Where considerations of public interest or prevention of future litigation are present,” this court may, at its discretion, “elect to settle an issue, even though moot.” Owens v. Taylor, 299 Ark. 373, 374, 772 S.W.2d 596, 597 (1989).
We are mindful that the Board urges that what was paid to Dr. Brooks was more than mere severance pay and included, among other things, substantial attorney’s fees. Nevertheless, the issue, as we see it, is whether the severance-pay provision under Paragraph 11E of the employment contract is constitutional. For reasons stated in this opinion, we conclude that it is. While the specific payment plan involving Dr. Brooks may not be “capable of repetition,” we hold that the issue of whether severance pay in superintendent employment contracts is constitutional is one of “substantial public interest.” We further recognize that our decision on this issue will prevent future litigation in school districts throughout this state. Hence, one of the exceptions to the mootness doctrine is met. For that reason, we addressed the issue in this case.
Affirmed. The motion to dismiss is denied.
The Arkansas Constitution provides that “[a]ny citizen of any county, city or town may institute suit, in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.” Ark. Const, art. 16, § 3.
Rule 52(b) of the Arkansas Rules of Civil Procedure provides that “[u]pon motion of a party made not later than 10 days after entry of judgment, the court may amend its findings of fact previously made or make additional findings and may amend the judgment accordingly.”
Although the appellants’ brief to this court cites the amount paid as a result of Dr. Brooks’s termination as being $656,000, other documents, including an affidavit of Mark Millhollen, Chief Financial Officer of the Little Rock School District, suggest that the amount actually paid was $635,000.
The taxpayers’ complaint fails to contain any allegation that the Board’s actions violated article 14, § 2. However, since the circuit court specifically found that there was no such violation, the matter will be addressed in this opinion.
Based on citations to Attorney General Opinions, the taxpayers urge this court to employ a “sufficient educational nexus” test or a “primary benefit” test. Attorney General Opinions are not, of course, binding on this court. Ark. Prof. Bail Bondsman Licensing Bd. v. Oudin, 348 Ark. 48, 59, 69 S.W.3d 855, 863 (2002).
Also on August 24,2007, the plaintiffs filed a petition for extraordinary injunctive relief with this court, seeking to prevent any payments from being made on account of Dr. Brooks’s termination. This court granted a temporary stay on the same day, but lifted it on August 28,2007. | [
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Jim Gunter, Justice.
This appeal arises from an order of the Pulaski County Circuit Court awarding summary judgment to Appellee Vimy Ridge Municipal Water Improvement District No. 139 (“Vimy Ridge”). For the reasons set forth in Vimy Ridge Municipal Water Improvement District No. 139 of Little Rock v. Ryles, 373 Ark. 366, 284 S.W.3d 70 (2008), we reverse the order of the circuit court.
On October 1, 2004, Vimy Ridge filed a complaint for foreclosure against Appellant Wilkins and Associates, Inc. (“Wilkins”) and others for the non-payment of improvement district assessments for the years 2001, 2002, and 2003. On August 1, 2005, Vimy Ridge filed a motion for summary judgment. Wilkins filed its response on September 20, 2005. On January 6, 2006, a hearing was held on the motion for summary judgment where Wilkins argued that the foreclosure complaint filed on October 1, 2004, was barred by the three-year statute of limitations under Ark. Code Ann. § 14-86-1208 (Repl. 1998). Wilkins asserted that, pursuant to Ark. Code Ann. § 14-86-1204 (Repl. 1998), the special improvement taxes are due on March 1, and are considered delinquent ninety days after that date. Wilkins argued that the complaint for the 2001 taxes should have been filed by June 1, 2004, and was therefore barred by the statute of limitations. The circuit court ruled that Ark. Code Ann. § 26-35-501 (Supp. 2007) includes special district taxes and that the 2001 taxes were not delinquent until after October 10, 2004. The circuit court ruled that the foreclosure complaint was timely and granted Vimy Ridge’s motion for summary judgment. Wilkins now brings this appeal.
For its sole point on appeal, Wilkins argues that the circuit court erred in granting Vimy Ridge’s motion for summary judgment because the statute of limitations had expired regarding the special improvement district assessment for 2001. Specifically, Wilkins asserts that assessments become due and payable on March 1, pursuant to Ark. Code Ann. § 26-35-501 and become delinquent 90 days later pursuant to § 14-86-1204. Therefore, Wilkins contends that the 2001 assessment in this case became delinquent on June 1, 2001, and Vimy Ridge’s October 1, 2004 foreclosure complaint is barred by the three-year statute of limitations.
Vimy Ridge responds, asserting that, because § 26-36-201(a)(2) (Supp. 2007) fixes October 10 as the time at which all unpaid taxes become delinquent, § 14-86-1204 does not apply in this situation. It asserts that § 26-36-201 includes the improvement taxes at issue in this case, and therefore, the 2001 taxes did not become delinquent until October 11, 2001. Because the complaint for foreclosure was filed on October 1, 2004, Vimy Ridge contends that it was filed within the three-year statute of limitations.
We review a circuit court’s decision in a tax case de novo, but will not disturb the circuit court’s findings of fact unless they are clearly erroneous. See Vimy Ridge v. Ryles, supra. We also review issues of statutory construction de novo, because it is for this court to decide what a statute means. Id. (citing City of Maumelle v. Jeffrey Sand Co., 353 Ark. 686, 120 S.W.3d 55 (2003)). While we are not bound by the decision of the circuit court, in the absence of a showing that the circuit court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Vimy Ridge v. Ryles, supra (citing Barclay v. First Paris Holding Co., 344 Ark. 711, 42 S.W.3d 496 (2001)).
We previously addressed the issue of when special taxes of municipal improvement districts become delinquent in Vimy Ridge v. Ryles, supra. In that case, Vimy Ridge filed a foreclosure action against Ryles, claiming that municipal improvement district taxes were delinquent. Ryles argued that Vimy Ridge’s foreclosure action was barred by the three-year statute of limitations. The circuit court granted Ryles’s motion for summary judgment, holding that Ark. Code Ann. § 26-36-201 (a) was not applicable to the improvement district’s special taxes at issue. Citing Quapaw Central Business Improvement Dist. v. Bond-Kinman, Inc., 315 Ark. 703, 706, 870 S.W.2d 390, 391-92 (1994), where we pointed out that municipal improvement districts “constitute a separate and distinct species of taxing districts as contradistinguished from counties, municipal corporations and school districts,” we rejected Vimy Ridge’s arguments because they attempted to apply provisions for the payment of general taxes found in Title 26 of the Arkansas Code to the special taxes of improvement districts under Title 14. Vimy Ridge, 373 Ark. at 371-72, 284 S.W.3d at 74. We held that, while the general taxes do not become delinquent until October 10, pursuant to § 26-36-201(a), “these provisions for general taxes under Title 26 would only apply to municipal improvement district taxes if they specifically adopted the installment scheme by ordinance” pursuant to Ark. Code Ann. § 14-90-801(b)(2) (Repl. 1998), stating:
Although the Little Rock ordinance [15-513] did specify that the special taxes were to be collected “annually with the first installment of general taxes,” the ordinance did not adopt the subsequent quarterly installment provisions for general taxes under Title 26, which improvement districts “may” adopt by ordinance as providedby§ 14-90-801(b)(2). Without such adoption, and without specifying the date the special taxes are delinquent, the specific statute dealing with when special improvement taxes become delinquent applies (§ 14-86-1204), and the delinquency date is ninety days after the special taxes are due and payable. Therefore, because the Litde Rock ordinance specifies that the special districts are to be collected annually, “with the first installment of general taxes,” and § 26-35-501 (a) specifies that the first installment of the general taxes “shall be payable on and from the third Monday in February to and including the third Monday in April,” the three-year statute of limitations began to run ninety days after the third Monday in April, 2001, well before Vimy Ridge filed its foreclosure action on October 1,2004. Accordingly, the trial court did not err in holding that the statute of limitations barredVimy Ridge’s foreclosure action for the 2001 delinquent improvement district taxes.
Id.
We affirmed the circuit court’s ruling that the statute of limitations barred Vimy Ridge’s foreclosure action for the 2001 delinquent improvement district taxes. For the reasons stated in Vimy Ridge v. Ryles, supra, we hold that Vimy Ridge’s October 1, 2004 complaint for foreclosure against Wilkins in this case is also barred by the statute of limitations. Accordingly, we reverse the order of the circuit court.
Reversed. | [
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Wood, J.,
(after stating the facts.) The indictment is good. The term “bailee” is used in the statute, section 1839, Kirby’s Digest. Alleging that a person received as a “bailee” certain money is sufficient to advise such person that he came into pos session of the money of another to be held for the other for some special purpose, upon the accomplishment of which special purpose the money is to be returned or delivered over. Schouler on Bailments, § 2.
The indictment does not charge two separate and distinct offenses. The crime alleged in the indictment is embezzlement which, committed under the circumstances and in the manner detailed, the statute denominates also larceny. Sec. 1839, Kirby’s Digest. Only one offense is alleged.
The court erred in permitting the prosecuting attorney to argue that Wyman and the defendant “entered into a conspiracy to rob and were conspirators in robbing the Ft. Smith Commission Company, that Wyman would take the tickets out of the drawer after they had been made by the shipping clerk, so that they would not go to the bookkeeper, and that the defendant would collect the bills and divide the spoils, with Wyman; that Wyman had been arrested for .it, had forfeited his bond and run away, left the country.” There was no evidence upon which to ground this argument. It was not shown that Wyman and appellant were in a' conspiracy to rob the Ft. Smith Commission Company. Even had such conspiracy been shown, the acts and declarations of one of the conspirators in-the absence of the other, after the object of the conspiracy had been accomplished, could not be used in evidence against the one on trial. Benton v. State, 78 Ark. 284, and authorities cited. . It was therefore highly prejudicial to appellant for counsel to assert as a fact that appellant was in a conspiracy with another to rob the Ft. Smith Commission Company, and that the other conspirator had been arrested, had given bond, and had fled the country. Thus counsel attempted by assertion, without proof, to make the impression upon the jury that one was associated in crime with appellant and had shown by flight his consciousness of guilt. If the jury accepted as true the assertion of counsel, the inevitable conclusion would be that appellant was also guilty. For in a conspiracy of two one is necessarily as guilty as the other. The argument was most unfair to appellant,- and well calculated to prejudice his cause before the jury. While we would not have disturbed the verdict upon the evidence aside from this improper argument, we are not so clearly convinced of appellant’s guilt upon the undisputed facts as to be able to say that the verdict was not caused by the extraneous evidence and improper argument which the prosecuting attorney brought into the record. See Marshall v. State, 71 Ark. p. 415.
The court did not err in refusing appellant’s request for instruction numbered six, and in giving instead section 1844 of Kirby’s Digest. This statute makes it unnecessary, where it is alleged, as in this indictment, that gold, silver, and paper money was embezzled, to do more than prove the amount of money, in all taken. That proof was made in this case by showing that the bill of Mayo marked paid by appellant amounted to $10.50. From this and other proof the jury were warranted in concluding that appellant had received the sum of $10.50.
The court did not err in admitting evidence of other similar transactions by appellant before and after the alleged transaction in controversy, since it was admitted with the limitation that it could only be considered on the question of intent. I Wigmore on.Ev. § 329; Howard v. State, 72 Ark. 586. If appellant was guilty at all, the particular criminal act under consideration according to the proof was one of a series of similar acts, and these were admitted to prove system and show design. Howard v. State, 72 Ark. 586, supra; Johnson v. State, 75 Ark. 427.
The judgment is reversed, and the cause is remanded for nevr trial. | [
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Riddick, J.,
(after stating the facts.) This is an appeal I from a decree denying a petition for restitution of lands sold I under a former decree, which the chancellor held to be erro neous but not void. . It is well settled, when lands are sold under a valid decree and purchased by one not a party to the proceedings who pays the purchase price and receives a deed to the lands, that the purchaser will be protected in his purchase, even though the decree under which the lands were sold be reversed and set aside on appeal. The mere fact that there were errors in the proceedings leading up to the decree is a matter of no moment, so far as the purchase is concerned, if the court had jurisdiction of the parties and the subject-matter and power to make the decree. Nor would the case be different if the purchaser had notice of such errors, for otherwise it would not be safe for any one to purchase at a judicial sale that was liable to be reversed on apepal. Tor on .a reversal it could always be said that by an examination of the record the purchaser could have ascertained the errors. Learned counsel for appellant have discussed the doctrine of innocent purchaser at some length and with much spirit and force, but that doctrine has very little application to this case, for this is not the case of one who purchases from a fraudulent grantor with notice of the fraud, or of one who buys land from one having the record title with notice of an outstanding title. Notice in such a case renders the position of the purchaser no better than that of the grantor. But the purchase here was made at a judicial sale where errors do not affect the validity of the sale, and where notice thereof does not affect the purchaser. It is sufficient for the purchaser at such a sale to know that the court had jurisdiction and power to order the sale. If the court has power under a decree to order the sale, and a purchaser buys at a sale made under the decree, then, if the sale is confirmed by the court, and the purchaser pays the price and receives a deed, it is immaterial, so far as he is concerned, whether there were errors or not, for his title will not be affected by them. Moore v. Woodall, 40 Ark. 42; Boyd v. Roane, 49 Ark. 397; England v. Garner, 90 N. C. 197; Cocks v. Simmons, 57 Miss. 193; Marks v. Cowles, 61 Ala. 304; 1 Black on Judgments, 265.
It follows that the main question to be determined in this case is whether or not the court had the power to make the sale at which McDonald purchased this land. The suit in equity in which the decree for the sale' of the land was made was .brought by certain relatives of J. N. S. Gibson, who claimed to be his only heirs at law, against Sallie Spott Gibson, now Mrs. Rankin, who, then an infant of tender years, was supposed to be the daughter of Gibson, and against Bettie Harwell, who had been the wife of Gibson, but had secured a divorce and married Harwell. The complaint alleged that Sallie Spott Gibson was not the child of Gibson, but the natural child of some man unknown to the plaintiffs, and that neither she nor her mother had any interest in the lands left by Gibson. Plaintiffs prayed that their rights be determined, that the lands be partitioned among them according to their rights, and for all other proper relief. The defendants filed an answer, denying the allegation of the complaint, and asked that it be dismissed. Mrs. Harwell also asked that commissioners be appointed, and that her dower and homestead rights be assigned and set apart for her, and both defendants asked for all such other relief as they were entitled to.
In the first place, the fact that the administrator was in possession of the lands did not in our opinion affect the jurisdiction of the court to decree a partition of the lands of the estate among the heirs on payment of the debts of the estate by them. The administrator had been appointed over two years, the amount of the debts were known, and, upon the heirs paying or offering to pay the debts, the court had the right to partition the land among them, for the holding of the administrator was not adverse to the heirs, and the fact that no one was in possession of the lands holding.adversely to the heirs made it necessary for these claimants to go into a court of equity to have their respective rights and interest determined. Trapnall v. Hill, 31 Ark. 345; Davis v. Whittaker, 38 Ark. 435. As the defendants were also claiming the land, and as neither the plaintiffs nor the defendants were in possession, a court of equity was the proper forum to determine their rights. And if it was found that the land was. owned by both plaintiffs and defendants, then a court of equity, in order to do complete justice and settle all controversies between -the parties arising out of the land, could order a partition thereof between them. The equity courts of this State have the power, independently-of the statute, to make partition of lands, and incidentally to order a sale thereof when a sale is necessary to do justice between the parties. Patton v. Wagner, 19 Ark. 233.
When it is alleged and proved that the best interests of both parties will be subserved by a sale of the land, the court may order a sale without first appointing commissioners to pass upon the necessity of a, sale. The failure to appoint commissioners certainly does not affect the jurisdiction of the court or the validity of the sale. If that was an irregularity, it can not be urged against a judgment on collateral attack, which is the only matter of importance to be considered in this case. Bell v. Green, 38 Ark. 78.
The question as to whether a court of equity has power to order a sale of an infant’s lands for investment or for other causes, when it clearly appears that such a sale would be 'to his benefit, has been much discussed by the courts. Such power was not exercised by the English courts of equity, and many American courts follow the English rule that a court of equity has no power, by ordering the sale of an infant’s land, to convert it into personal property or to make any disposition of the inheritance that will bind the infant.
The English rule is said by some courts to be founded on the wide difference that existed “under the law of England between realty and personal property with respect to their enjoyment and devolution, passing as they did in different lines of succession, and being capable of disposition by will at different ages.” The opinion of quite a number of American courts that these considerations should have little weight in the United States, where the differences between realty and personalty in these respects have been almost wholly obliterated, has led them to reject the English rule, and-to hold that in this country courts of equity have the power to sell or mortgage the lands of infants for their benefit. This jurisdiction is exercised cautiously, and never unless it is clearly made to appear that a sale will be to the decided advantage of the infant.
The cases bearing on this question have been reviewed and the law clearly stated on this point by Mr. Stewart in an extended note to the recent case of Richards v. Ry. Co., 6 Am. & Eng. Dec. in Eq. (1st series), 488. The question was considered by this court in Shumard v. Phillips, 53 Ark. 37, where Chief Justice Cockriuc approved the statement of Chancellor Cooper in Gray v. Barnard, 1 Tenn. Ch. 298, to' the effect that the rule was based mainly on the minor’s want of power to convey, and the “fact that the court was unable to supply him with the power or to authorize another to do for him what he could not do for himself.” But he said that “in this State the difficulty of divesting the title had been remedied by a statute — - a vestige of the ancient practice remaining in allowing the infant one year after reaching majority to show cause against a judgment in certain cases.” The reasoning of that case seems to support the contention that in this State the courts of equity-have power to order the sale of an infant’s land, though the court declined to state whether the Constitution of 1874 took away the jurisdiction of equity over the persons and estates of minors, and so left the question undecided.
But we regard it as unnecessary to determine that- question in this case, for it has always been the rule, both in this country and in England, that courts of equity have the power, where the decree is by consent, to order the sale of an infant’s real estate in proceedings for the partition of lands, or when necessary to secure or protect the rights of other parties. Davis v. Turvey, 32 Beav. 554; Hubbard v. Hubbard, 2 Hem. & M. 38; Thorington v. Thorington, 82 Ala. 489; Bent v. Miranda, 8 N. Mex. 78; McGowan v. Lufborrow, 82 Ga. 523; Shaffner v. Briggs, 36 Ind. 55; In re Simmons, 55 Ark. 485.
A judgment of that kind may be entered by the consent of the parties, even though an infant be a party to the proceedings; and where the infant is properly represented, he will be as much bound by such a decree as an adult. Eor an infant is ordinarily bound by acts done in good faith by his solicitor or counsel in the course of a suit to the same extent as a person of full age is bound. As a matter of course, before pronouncing a decree by consent against an infant, -the court should make inquiry and ascertain that the decree will be for the benefit of the infant. But the failure to make inquiry does not affect the jurisdiction or power of the court to render the decree, for it would never do to hold, when a court has jurisdiction of the parties and of the subject-matter, that the mere failure of the judge to properly consider the matter before rendering his judgment invalidated his judgment and rendered it void. Such a rule would provide a new and effective means whereby judgments could be assaulted and overthrown on collateral attack, and finds little or no support in the adjudged cases. For this reason, while courts should, as before stated, always make inquiry before rendering decrees affecting the property of infants, yet, if the court having jurisdiction does without inquiry pronounce a judgment by consent in a case where an infant is a party, the infant is as much bound by the decree, until set aside by some direct proceeding authorized by law, as if there had been the fullest inquiry and an express determination that the decree was for his benefit. Thompson v. Maxwell Land Grant Co., 168 U. S. 451; Tripp v. Gifford, 155 Mass. 108, s. c. 31 Am. St. Rep. 530; Walsh v. Walsh, 116 Mass. 377; Cox v. Lynn, 138 Ill. 195; Gusdofer v. Gundy, 72 Miss. 312; Fletcher, Eq. Plead. & Prac. § 711; 1 Black on Judg. (2 Ed.), 197.
But it is said that the decree is void in this case because the complaint did not allege that the sale of the land was necessary, and did not ask for a partition of the land against the defendant or for a sale of the land. The plaintiffs, it is true, alleged and contended that the defendant had no interest in the land. They alleged that the lands could be partitioned in kind between themselves, but they asked also for all other proper relief. The answer of Mrs. Harwell, one of the defendants, after alleging that the lands were owned by defendant, and that the plaintiffs had no interest therein, asked for an assignment of the homestead and dower; and, as before stated, both of the answers and cross-complaints concluded with a prayer for general relief. Now, we do not regard it as a jurisdictional defect that the complaint alleged that the defendant had no interest in the lands, and asked for no partition between them; for, under the prayer for general relief, when it was determined that the defendant had an interest in the lands, the court had the right to completely dispose of the controversy, and to order a partition of the lands between them. As an incident to that, it had the right to order a sale of the lands, if necessary to make the partition and to do complete justice between the parties. For, under the prayer for general relief, the parties may have special relief other than that prayed for by the bill. Fletcher’s Eq. Plead. & Prac. 734 & 735; 1 Black on Judg. § 197.
“The court,” says Mr. Bliss, “may grant any relief consistent with the case made and embraced within the issue. If the facts put in issue and established by evidence entitled the party to any relief in the power of the court to give, although not that demanded, it is the duty of the court to give it, and its power to do so is not conditional upon the form of the prayer.”Bliss on Code Pleading, § 161.
It is clear, we think, that the pleadings in this case were sufficient to authorize the judgment by consent, for that judgment was within the scope of the case made by the pleadings. The judgment being by consent, the pleadings must be treated as amended so as to sustain the judgment. In other words, as the parties could by consent have amended their pleadings, sc as to ask for a sale of the land, and to show that it was necessary in order to rtiake partition without prejudice to some of the parties, we must treat this as in effect done when they consented to a decree for partition and to a sale of- the land for that purpose. In this collateral attack upon the decree and the sale thereunder we must assume that the parties representing the infant defendant honestly believed that it was to her interest that a decree of that kind should be made, and that the evidence justified this belief. As the court had power to order a sale of the land for partition, such a decree was binding on all parties 'before the court, infants as well as adults, until reversed or set aside on appeal or in some way provided by law.
We see nothing in this case that justifies the assertion that the parties to the suit in which the decree was rendered committed any fraud upon the -court. It was in no sense a fictitious proceeding brought to impose upon the court and secure its judgment by fraudulent methods, but a bona Ude suit between parties claiming interests in land adverse and hostile to each other. The parties were each represented by learned counsel. After the evidence had been taken and was before the court the parties compromised and agreed to a decree settling their rights because it was deemed the best thing to do under the circumstances. There is not, in our opinion, the slightest ground to hold that there was anything fraudulent or dishonest in the matter, or that the judgment was void on that account. Nor do we think that the effect of the former decision of this court, when the consent decree was before the court on appeal, was to hold that such decree was void. On the contrary, the language of the court clearly indicates that the judgment of reversal was on the ground of error, and that the court did not intend to hold that the decree was void.
The testimony shows that when E. B. McDonald purchased the land at the sale under the decree he had an understanding with E. S. McDonald, one of the parties to the litigation, that he was to take a one-third interest therein. But E. S. McDonald afterwards declined to take the land, and L. B. McDonald kept the whole tract. We do not think that this agreement in any way affects the right of E. B. McDonald to be protected in his purchase. He was not a party to the suit, nor did he in any sense purchase from E. S. McDonald, but from the commissioner. He paid a fair price, and comes, ás we think, fully within the rule which protects such purchasers against the effect of subsequent reversals.
Again, if this sale was void, still the action of plaintiff for restitution of the lands against the heirs of E. B. McDonald, the purchaser at the sale, seems to be barred by the five years statute of limitations applicable to judicial sales. This statute provides that actions for the “recovery of land sold at judicial sales shall be brought within five years after the date of sale and not thereafter, saving to minors and persons of unsound mind the period of three years after such disability shall have been removed.” Kirby’s Digest, § 5060. This statute, after the. time for bringing the action has lapsed, protects the purchaser, even though the sale may have been void. Cowling v. Nelson, 76 Ark. 146.
In this case the sale was made in 1889, and confirmed in February, 1890. The statute commenced running in favor of the purchaser at that time, and the five years expired before plaintiff became of age in June, 1899. She had, under the statute, three years to bring the suit from that date, but she did not file the petition for restitution against the heirs of E. B, McDonald until December, 1902, more than twelve years after the confirmation decree and more than three years after she arrived at age. For this reason a majority of us think that she is barred; but, as the case is decided by the other points noticed, we find it unnecessary to go into a full discussion of the question of limitations.
■The case has been ably argued, and a large number of authorities have been presented for our consideration. The value of the property involved and the nature of the questions presented are such as to impress us with the importance of this controversy to the parties, but after due consideration thereof we are convinced that the judgment of the chancellor was in acr cordance with the law, and it is therefore affirmed. | [
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Riddick, J.,
(after stating the facts.) This is an appeal from a judgment refusing compensation to plaintiff, Geo. C. Lewis, for negotiating an agreement to purchase land. The contract of sale is set out in the statement of facts. The addendum thereto represents the contract made between the plaintiff and defendants. The language of it is: “We agree to above contract. Out of this price we are to receive $8,000 net to us. The balance of purchase price $1,600 is to be paid to Geo. C. Lewis as commission for sale of said land.” This was signed by Briggs and his wife.
It will be noticed that under this agreement $8,000 net was to be paid to Briggs and wife, and that Lewis was to receive only the balance left after the payment of this $8,000 to Briggs and his wife. If the contract had been carried out in good faith by both parties, Lewis could have claimed nothing until Briggs and wife had received the $8,000 which was to be paid to them. But it is undisputed that only the $400 referred to in the contract as having been paid in cash was ever received by the defendants. They have never received the $8,000 which they were entitled to under the contract, for it was never paid, and there is no contention that any portion of the $1,600 which Lewis was to receive has ever been paid to or received by defendants. Under the terms of this contract, Lewis does not make out a case for recovery against the plaintiff by showing that he secured a contract with solvent parties to purchase the land. He must under this contract show either that defendahts have received some part of the balance of the purchase money to which he was entitled or that the parties who agreed to purchase were ready, willing and able to perform their part of the contract, and that they were prevented from doing so by the default or failure of the defendants to perform their part of the contract.
Now, it is certain that the parties who had agreed to purchase afterwards declined to do so. Whether their failure was caused by the fact that defendants refused to make any reduction from the price on account of the right of way which the railway company owned or claimed across the land, or whether it was due to other causes, is not made very clear by the evidence, though the case turned entirely on that point. But it seems to us that the question on which the case turned was fairly and clearly presented to the jury by the instructions of the court, and that the court did not err in refusing those asked by plaintiff. To return a verdict in favor of the defendants under the instructions given, the jury must have found that the act of the purchasers in failing to pay the purchase price w.as not due to any fault of the defendants. These purchasers were nonresidents, and there was nothing in the contract that required the defendants to bring suit against them on their failure to pay. Under this contract, so lor^g as the purchase price was unpaid, and so long as defendants were not to blame for its nonpayment, they are not liable.
We are therefore of the opinion that the judgment should be affirmed, and it is so ordered. | [
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Battue, J.
Emmet Whitted, by his next friend, brought this action against the Arkadelphia Lumber Company to recover damages occasioned by injuries sustained by him while in the service of the defendant. The lumber company owned and operated a machine for manufacturing staves. In the machine and a part of it were saws so constructed that, when in operation, they vibrate up and down and to the right and left at a great rate of speed, and can be stopped and put in motion independently of other parts of the machine. The plaintiff, a lad about eleven vears of age, was employed by the defendant to assist in the operation of these saws by “picking sticks,” and removing out of the way of the saws sawdust and shavings. Before he was sent to work, the foreman showed him the saws, and told him to be careful and not get hurt, and to remove the sawdust and shavings when the machinery was not in motion. No instructions were given him as how he should do the work: and he was not instructed as to the dangers to which he was exposed by the operation of the machinery, and how to guard against the same. On the 17th day of May, 1905, while he was engaged in clearing dust and shavings away from the saws, his left hand was caught, and his fingers, except the thumb, were severed by the saws. Some witnesses say that when he commenced removing the sawdust and shavings the saws were not in motion, but after he had been so engaged for a short time the machinery was suddenly started, without signal, notice or warning to the boy, and the injury was inflicted; and others say that it was in-motion all the time he was so employed in cleaning. There was no rule or regulation adopted by the defendant for the protection of its employees against such accidents, unless it was an instruction to the operator to look and see that no one was in' danger before putting the machine in motion.
Upon this state of facts the court instructed the jury that tried the issue in the case,' over the objections of the defendant, in part as follows:
“No. 1. You are instructed, that if you find from the evidence that defendant, by its foreman, ordered the plaintiff, Em-met Whitted, to perform work at the defendant’s stave machine, and that the said stave machine was a dangerous and deceptive machine, and that the plaintiff, by reason of his youth and inexperience, did not know or appreciate the danger incident to the service about said machine, and that defendant’s foreman did not warn him of such danger or explain to him how to perform the service required of him. and that by reason of the failure to give him proper instructions how to perform the service required of him, or to warn him of the danger incident to the performance of such service about said stave machine, together with the plaintiff’s want or lack' of knowledge or appreciation of the danger incident to such service, on account of his youth and experience, he was injured, then it will be your duty to find for the plaintiff.
“No. 2. You are instructed that if you find from the evidence that the plaintiff was employed by defendant, and was by the defendant’s foreman ordered to perform services upon and about defendant’s stave machine, and that sáid stave machine was a dangerous machine, and that defendant’s foreman did not instruct plaintiff how to perform the services required of him, so that said services might be done in a reasonably safe way, and the danger incident to the same be obviated or lessened if the same can be done, and the plaintiff, by reason of his youth and inexperience, did not know or understand how to perform said service without danger to himself, and that, in attempting to perform the said service required of him, he was injured, defendant is liable, and your verdict will be for the plaintiff.
“No. 3. You are instructed that it is the duty of the master, the defendant, to make and establish such rules and regulations in the management of' their stave mill for the protection of their employees against the dangers incident to the performance of their duties; and in this case if you find from the evidence that they had no such rule or regulations, or if they had them and knew that they were not observed or were insufficient to afford reasonable protection against the danger incident to the performance of their duties, and by reason of defendant’s, failure to make and establish such rules and regulations, or on account of the insufficiency of same, plaintiff was thereby injured, defendant is liable, and your verdict will be for plaintiff.
“No. 4. You are instructed that, although you may believe that the danger incident to plaintiff’s employment in and about defendant’s stave mill was patent, yet, if you find that on account of plaintiff’s youth and inexperience he did not know or appreciate the danger incident to the service he was employed to do, and that the defendant did not warn him of such danger or instruct him how to avoid it, so far as it could be avoided, before exposing him to such danger, your verdict will be for the plaintiff.”
And the court refused to instruct the jury at the request of the defendant as follows:
“No. 8. From the evidence introduced in this case the court instructs you that the man, Will Blackburn, whose duty it was to feed the defendant’s stave machine, and to start and stop the said machine, was a fellow servant with the said Emmet Whitted, and that the defendant will not be liable to the plaintiff for the act or .acts of a fellow servant with the said minor; and in this case if they find from the evidence that the said stave machine was stopped and at rest, and that, while the said minor, Emmet Whitted, was engaged in cleaning up under and around the said stave machine, the same was, by Will Blackburn and without the knowledge or consent of the defendant, or its foreman, Frank Duval, suddenly started, by reason of which sudden starting the said Emmet was injured, then you are told that the said injury was the result of the. act of a fellow servant, and your verdict should be for the defendant.”
“No. 14. If the jury find, from the evidence in this case, that Will Blackburn was the feeder of what was known as the stave machine in the mill of the Arkadelphia Lumber Company, at which the plaintiff’s son, Emmet Whitted, was injured, and' that it was the duty of said feeder to start and stop the said machine, and that in this case the said Will Blackburn was properly instructed by defendant, or by some one for it, to be careful to see that no one was in a dangerous position about said machine before starting the same, or instructions to the same effect, then and in that event the defendant cannot be held to be liable in damages for the failure to make and promulgate further rules for the -protection of the other employees working in and about the said stave machine, notwithstanding the jury may believe that the said Blackburn failed to comply therewith.”
The jury returned a verdict in favor of plaintiff for $3,000, and 'the defendant appealed.
The giving of instruction numbered 3, if incorrect, and the refusal to give instructions numbered 8 and 14, if correct, were not prejudicial.
In Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 238, it is said: “If * * * the servant, by reason of his youth and inexperience, is not aware of or does not appreciate the danger incident to the work he is employed to do or to the place he is engaged to occupy, he does not assume the risk of his employment until the master apprises him of the dangers. It would be a breach of duty on the part of the master to expose a servant of this character, even with his consent, to such dangers, without first giving him such instructions and caution as would, in the judgment of men of ordinary minds, understanding and prudence, be sufficient to enable him to appreciate the danger, and the necessity for the exercise of due care cmd caution, and to do the zuork safely, with proper care on his part. For a breach of his (this) duty the master is bound to indemnify such servant against the consequences. He can not escape this liability by delegating the duty to instruct or inform to another person.” Glover v. Dwight Manufacturing Co., 148 Mass. 22; King-Ryder Lumber Co. v. Cochran, 71 Ark. 55; Ford v. Bodcaw Lumber Co., 73 Ark. 49.
The court instructed the jury that it was the duty of the appellant to warn appellee of the dangers incident to'the service he was employed to do, and how to avoid it, so far as it can be, before exposing him to it. It (appellant) did not warn him of the danger to which he was exposed, and how to do his work so as to avoid the same, which could have been done by the use of a stick. '
The undisputed facts in the case show that the injury to appellee was due to the failure of the master to properly caution and instruct him. The judgment of the court is right upon the whole record.
Judgment affirmed. | [
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,Hill, C. J.
The undisputed facts of this case are: Mrs. Martha J. Wild had a judgment in justice of the peace court against G. S. Castleberry, and execution was issued thereupon and placed in the hands of Fultz, a deputy sheriff, who levied upon one bale of cotton as the property of Castleberry.
Castleberry gave notice to Mrs. Wild that he would claim the bale as exempt from execution and sale, and there was a hear ing upon this claim of exemption before the justice, and the justice denied it and refused to issue supersedeas. Thereupon Castleberry appealed to the circuit court, but did not give supersedeas bond. Fultz, acting under his execution after the supersedeas was denied, and 'before the trial on appeal, sold the cotton and paid the judgment and costs to the plaintiff therein, Mrs. Wild, and tendered the surplus, $24.95, to Castleberry, who refused to accept it. On the hearing in circuit court, Castleberry’s claim to exemption was sustained, and he thereafter brought suit against Fultz and his principal, Sheriff Sevier, for the value of the bale of cotton. Sevier and Fultz answered, justifying under the process in their hands, and again tendered the surplus of the sale, $24.95. • Castleberry recovered judgment, under issues sent to the jury, and the sheriff and deputy appealed. It is unnecessary to go into any questions as to the correctness of the instructions or rulings as to the evidence, for the facts admitted in the agreed'statement, summarized above, show that Castleberry had no case against the officers except for the surplus, and that was tendered before suit and in the suit.
Thq exemption law provides: “An appeal may be taken tq the circuit court from any order or judgment rendered by the justice of the peace upon the filing of the affidavit and executing the bond required in other cases of appeal.” Kirby’s Digest, § 3908. This shows that appeals from an order refusing a supersedeas are to be governed by the general law controlling appeals from justice court; and, turning thereto, it is found: An appeal ipay be taken by complying with certain named conditions, one of which is the execution of an appeal bond; but an appeal ma/ be taken without such bond, on the express condition that “such appeal shall not operate as a suspension of the proceedings upon the judgment appealed from, and no certificate shall be given the appellant stating that an appeal in the cause has been allowed, and no execution be recalled.” Kirby’s Digest, § § 4666, 4667. Therefore it follows that Castleberry could not stay the execution without giving the bond, and it was the duty of the sheriff to obey the process in his hands.
Castleberry’s subsequent judgment in the circuit court sustaining his claim to the bale of cotton as exempt from the execution established his right to the property against Mrs. Wild, and she is, of course, liable to him for the value of it. The only claim he ever had against the sheriff was for so much of its proceeds as he had in his hands after paying the judgment to Mrs. Wild, and this would be a credit on his claim against Mrs, Wild, and the sheriff has always offered payment of that sum.
Reversed and remanded. | [
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McCuuuoch, J.
This appeal involves the construction of the will of Mary Hare, deceased, the validity of certain bequests therein made and the right to sell, during the life of her daughter, Ella Hare, the real estate of the testator. The clauses of the will under consideration are the following:'
“I give and bequeath to Rev. Lawrence Smyth and the Rev. Michael Smyth the sum of two hundred dollars each, and request that they offer the Holy Sacrifice of the Mass occasional for the eternal repose of the souls of myself and my husband.
“I give, devise and bequeath to the Convent of the Sisters of Mercy at Fort Smith, known as Saint Anne’s Convent, one-half of all my real estate, real and personal, after deducting the legacies and bequests mentioned in this my last will and testament, for the support and maintenance of my daughter, Ella Flare, during her life, and after the death of my said daughter Ella I give, devise ánd bequeath to the said Sisters of Mercy the said one-half of my estate, real and personal, for the purpose of helping to educate poor Catholic children.
“I give, devise and bequeath to the pastor of the parish of the Immaculate Conception of Fort Smith in the State of Arkansas one-half of all my estate, real and personal, to be used by the said pastor for the purpose of helping to establish a school in said parish for the education of Catholic boys and for helping to educate young men of the parish for the priesthood.”
The testatrix, Mary Flare, resided at Fort Smith, and was a member of the Roman Catholic Church called the Church of the Immaculate Conception. This church is sometimes called the “Irish Catholic Church” because of the fact that its membership is made up largely of Irish Catholics, and in contradistinction from another church organization in the same city named St. Bonifacius Catholic Church and sometimes called the “German Catholic Church.”
There was a local body of Sisters of Mercy connected with the Church of the Immaculate Conception conducting a school on their property adjoining the church, and commonly known as “Sisters of Mercy of St. Anne’s Academy.” Also sometimes called “St. Anne’s Convent,” and sometimes “Sisters’ Convent.” In the laws of the church such an organization is denominated as “Chapter of the Sisters of Mercy,” and is perpetuated by the incoming of new sisters from year to year. The title of the executive officer of the chapter is “Mother Superior,” and the office is filled by election of chapter sisters at intervals of three years. When the sisters first enter the convent, they serve for a time as postulants, and later become members of the chapter, and are called “Sisters of Mercy.” These organizations are auxiliaries of the Catholic Church, and have fixed rules for their operation.
The General Assembly enacted a statute, which was approved December 20, i860, as follows:
“An Act to Incorporate the Sisters of Mercy of the Female Academies of Helena, Little Rock and Fort Smith.
“Section 1. Be it enacted by the General Assembly of the • State of Arkansas.
“That the Sisters of Mercy of the female academies of Helena, Little Rock, and Fort Smith, and their successors, respectively, are hereby constituted bodies corporate and politic, with succession, each, for ninety-nine years, under the respective corporate names and styles of ‘The Sisters of Mercy of the Female Academy of Helena,’ ‘The Sisters of Mercy of the Female Academy of Little Rock’ and ‘The Sisters of Mercy of the Female Academy of Fort Smith,’ and by those names applicable to each corporate body as if contained in separate acts; shall have power to make contracts, and to sue and be sued, and shall have a common seal; and each corporation, respectively, shall have full power to form such constitution and by-laws, or such rules and regulations, as may be necessary and needful for the government of each of said academies respectively; and to promote proper discipline and education and learning therein and to provide for the selection of superiors or directors, or other officers therein, at any time; also .power to use and preserve their property, real, personal and mixed, and to have, hold and enjoy the same, which may be at any time given, donated, granted, sold or bequeathed to the said sisters, or said academies, respectively, for the use thereof; and to sell, mortgage or' pledge the same, for the benefits of the said academies, or for the use thereof, respectively; and finally to do and perform all other things that may be proper to be done for the advancement of' learning, and the interest and objects of the said corporations, respectively; but nothing shall be allowed contrary to the Constitution and laws of this State.
“Sec. 2. No misnomer shall defeat or annul any grant, gift, devise or bequest thereto, or contract therewith, whenever the real intent sufficiently appears. íjí ;ji sfc i]c ijc * % íj? * 'Á'
“Sec. 4. . This act shall be construed as if it were three separate charters for said corporations, and shall be judicially noticed without pleading, and shall be in force from its passage.”
The chancellor in his decree construed the will as follows: “The bequest to ‘the Convent of the Sisters of Mercy at Fort Smith, known as ‘St. Anne’s Convent,’ is construed to mean that the Sisters of Mercy of the Female Academy of Fort Smith, a corporation, was made trustee under this clause of the will; that said Sisters of Mercy took no beneficial interest, but did take as trustees one-half of said estate, after deducting special legacies, for the support and maintenance of Ella Hare, daughter of testator, during her life, and at the death of said Ella Hare take the said one-half in trust for the purpose of helping to educate poor Catholic children, and the latter bequest was for charitable uses, and was and is a valid bequest to said Sisters of Mercy of the Female Academy of Fort Smith for the purposes mentioned in said will.
“The bequest to the pastor of the Church of the Immaculate Conception is construed to mean that the pastor of the Church of the Immaculate Conception at the death of said testator arid his successor or successors as pastor took the property therein bequeathed in trust for the purposes mentioned in that clause of said will; that the said trust was and is a valid one, and that James Brady, .present pastor of the Church of the Immaculate Conception, holds said property under the provisions of said will as trustee for the uses and purposes therein mentioned.
“That the Sisters of Mercy of the Female Academy of Fort Smith and James Brady, pastor of the Church of the Immaculate Conception, had the right to sell the property devised as aforesaid and hfeld in trust by them, respectively, as hereinabove decreed, and that the deed of conveyance made to defendant, Tillman Shaw, by said James Brady and the Sisters of Mercy of the Female Academy of Fort Smith by Sister Alqysius O’Connell, Mother Superior, was and is valid.”
Did the chancellor reach the correct conclusion?
i. It is contended, first, that the court erred in construing the language of the will “Convent of the Sisters of Mercy at Fort Smith, known as St. Anne’s Convent” to mean and refer to “Sisters of Mercy of the Female Academy of Fort Smith,” a corporation created by the statute quoted above; that said so-called “Convent of the Sisters of Mercy at Fort Smith, known as St. Anne’s Convent,” was not capable of acting as trustee, that the devise was void, and that on the death of the testatrix the title vested by inheritance in her daughter.
It is an elementary rule of construction that a bequest or devise will not fail because of a mere inaccuracy in the designation of the beneficiary, where the meaning of the testator can be gathered with reasonable certainty from the instrument itself, or where the identity of the object of his bounty can be shown by extrinsic evidence; and such evidence is always admissible for the purpose of identifying the beneficiary, where there is uncertainty or ambiguity in the designation. This rule applies to corporations as well as to individuals, and to trustees as well as to those taking for their own benefit, i Jarman on Wills, (6th Ed.) p. 347 i Page on Wills, § 538, 539; 6 Cyc. p. 936.
“Misnomer,” says Mr. Page, “is especially frequent in devises to charitable corporations. The real names of such corporations are often never used and never known by people generally; and many testators do not feel the need, in preparing a will, of getting the real name of the proposed beneficiary. They prefer to guess at the name. Hence the number of adjudicated cases on this point. It is an elementary principle that where a corporation is indicated in a will by an erroneous name, such a mistake will not avoid the gift if it is possible by means used, or by intrinsic evidence, to identify the corporation intended as beneficiary with sufficient certainty. * * * Where the name given to the corporation is not that of any existing corporation, but closely resembles the name of a corporation engaged in a similar work, the gift will be held a gift to such corporation if the evidence indicates that this corporation was intended by testator.
The following cases illustrate the various applications of this principle by the courts, and fully sustain the chancellor in his ■conclusion: Reilly v. Union Protestant Infirmary, 87 Md. 664; Woman’s Missionary Society v. Mead, 131 Ill. 338; Chambers v. Higgins, (Ky.) 49 S. W. 436; Newell’s Appeal, 24 Pa. St. 197; Straw v. East Main Conference, 67 Me. 493; Russell v. Allen, 107 U. S. 167; Gilmer v. Stone, 120 U. S. 586; Cook v. Universalist General Convention, (Mich.) 101 N. W. 217; Oades v. Marsh, 111 Mich. 168; Bristol v. Ontario Orphan Asylum, 60 Conn. 472.
It is also argued, in this connection, that the statute quoted did not ipso facto create the corporation named, but only authorized its organization, which was never done. We think that the statute did create the corporation, and that corporate functions have been exercised thereunder. Real estate to be used, and which has since been continuously used, for the purposes contemplated by the act of incorporation was conveyed to the corporation eo nomine, and an organization has been regularly kept up with an executive officer at the head.
2. It is contended that the decree of one-half of the property of the testatrix in the next clause of the will was to the pastor of the Church of the Immaculate Conception then in office, that the trust was conferred upon the individual, and not upon the office, and that the court erred in decreeing that James Brady, the succeeding pastor of the church, could take the property as successor in trust. We think it is quite clear that the testatrix meant to constitute the pastors of the church in succession as the trustees under the will.
3. The main ground for the assault upon the .validity of the two devises is that they are both too indefinite to be enforceable in designating the beneficiaries. It is contended that the language “helping to educate poor Catholic children” in one clause, and “for the purpose of helping to establish a school in said parish for the education of Catholic boys and for helping to educate young men for the priesthood,”, in the other clause, is too indefinite to manifest the intention of the testatrix, and that the trust is void and cannot be carried out.
In Biscoe v. Thweatt, 74 Ark. 545, where the court had under consideration a devise to the “Vestrymen of St. John’s Episcopal Church of Helena, Arkansas, and their successors in office,” * * * “for the benefit of said St. John’s Church as they may deem best for its interest,” it was held that the statute of charitable uses, 43 Elizabeth, c. 4, is in force in this State/ that an unincorporated religious body is a public charity, so as to be capable of. receiving the testator’s bounty as such charity, and that the devise was not too indefinite on account of the discretion vested in the trustees. The court there quoted with approval the following language of the Supreme Court of the United. States, speaking of trusts for public charitable purposes: “They may, and indeed, must, be for the benefit of an indefinite number of persons; for, if all the beneficiaries are designated, the trust lacks the essential elements of indefiniteness, which is one characteristic of a legal charity. If the founder describes the general nature of the charitable trust, he may leave the details of its administration to be settled by trustees under the superintendence of a court of chancery.” Russell v. Allen, supra.
In the note to a case of Rifield v. Van Wyck, 64 Am. St. Rep. 745, the author states (at page 771) the following rule as being sustained by a majority of the adjudged cases: “The donor may, however, appoint trustees, and invest them with discretion to apply the fund toward a charitable purpose specified by him, leaving them, in its application, to select, from numerous persons or institutions, which shall receive the benefit of his bounty, or the testator may specify the charitable purpose in terms so general that the trustees must necessarily exercise a discretion in determining which of many purposes falling within' the general description they shall seek to promote or accomplish.” Counsel for appellant challenge the statement of the author that this doctrine is sustained by the weight of authority, but we conclude that it is, and that this court has approved it in Biscoe v. Thweatt, supra.
Mr. Perry announces substantially the same doctrine as follows: “It is immaterial how uncertain the beneficiaries or objects are if the court by a true construction of the instrument has power to appoint trustees to exercise the discretion or power of making the beneficiaries as certain as the nature of tjre trust requires them to be. ’ Uncertainty as to the individual beneficiaries’ is characteristic of a charitable use.” 2 Perry on Trusts, § 732.
Now, after having ascertained that the will designates as trustee an incorporated educational institution with purposes and powers defined by the statute creating it, the difficulty of interpreting the meaning of the testatrix in providing that the devise shall be for the purpose of helping to educate poor Catholic children entirely vanishes. There is left no uncertainty in her specification of the charitable purpose, and her intention to vest in the trustee a discretion in its application to select out of the class designated the individual recipients of the bounty is clearly implied. It -is plain that the object of the devise was to assist in the education, at the institution named, of such poor Catholic children as the trustee, acting through its proper officials, shall elect. That there are, and will ever continue to be, individuals falling within that class, goes without saying.
Nor is there any uncertainty in the design of the testatrix in providing that the other half of her property shall “be used by said pastor for the purpose of helping to establish' a school in said parish, for the education of Catholic boys and for helping to educate young men of the parish for the priesthood.” A class to be the object of the bounty is plainly designated, and the selection of the individuals out of that class is left to the discretion of the trustee.
It will hardly be said that either of these devises does not fall within the definition of a public charity. The definition given by Mr. Justice Gray in Jackson v. Phillips, 14 Allen (Mass.), 539, and generally accepted as correct by the modern American authorities, is that it is “a gift to be applied, consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings, or works or otherwise lessening the burdens of government.” 6 Cyc. p. 900 and cases cited. By every test and according to every definition, gifts for educational purposes are public charities. Vidal v. Girard’s Executors, 2 How. (U. S.), 127.
3. Lastly, it is contended that the trustees named had no power to sell and convey, during the life of Ella Hare, the real estate devised under the will. The terms of .the devise do not confer upon the trustee less power over the disposition of the property during the life of Ella Piare than it does after her death. The devise is absolute; and unless the power of disposition at any time after the death of the testatrix is conferred, then it is not conferred at all, and the property must be held in perpetuity. It is undoubtedly the well settled rule that trustees for infants can never, unless power is conferred by the instrument creating the trust, break into the capital of the trust fund or dispose of the corpus of the estate for any purpose, yet we think that the power of disposition for the purposes named in the will is plainly implied from the terms and provisions of the instrument itself. The only limitation upon the power of the trustee is as to the use of the property. During the life of Ella Hare one-half of the estate must be used for her support and maintenance, and for no other purpose. It is not contended that there had been any abuse of the power of sale, if it exists at all, nor that there has been any misappropriation of the proceeds. The objection is only to the exercise of the power at all. The authority of the Mother Superior to execute a conveyance for and in the name of the corporation is also questioned, but we think that her authority is sufficiently shown by the resolution passed by the Sisters of Mercj'- composing the chapter.
We find no error in the decree, and the same is in all things affirmed.
Hiix, C. J., disqualified and not participating. | [
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Battle, J.
J. P. Portis brought this action against the St. Louis and San Francisco Railroad Company to recover damages caused by the killing of a horse and the destruction of a wagon and harness by a train of the defendant, the horse, wagon and harness being his property. He recovered judgment, and the defendant appealed.
Tolbert Davis was driving a delivery wagon for appellee. Pie had delivered some goods on Hill Street in Fayetteville, Arkansas, and before leaving Plill Street, and while driving south, and a block distant from the railroad crossing, he looked in both directions for a train, and then drove on in the direction of the railroad. He looked south no more until after he had driven on the railroad, when it was too late. The train of the defendant struck and killed the horse and destroyed the wagon and harness, and the driver left the track as the train struck the horse, barely making his escape. The train was in full view before he drove on the track, and, had he looked south before driving on the track, he would have seen the train and avoided the. accident. He was guilty of contributory negligence and appellant is not liable for damages. Tiffin v. St. Louis, I. M. & S. Ry. Co., 78 Ark. 55; Railway Co. v. Cullen, 54 Ark. 431; Railway Co. v. Tippett, 56 Ark. 457; St. Louis, I. M. & S. Ry. Co. v. Martin, 61 Ark. 549; Martin v. Little Rock & Ft. S. Ry. Co., 62 Ark. 156; St. Louis, I. M. & S. Ry. Co. v. Taylor, 64 Ark. 364; Little Rock & Ft. S. Ry. Co. v. Blewitt, 65 Ark. 235; St. Louis & S. F. R. Co. v. Crabtree, 69 Ark. 134. Appellee sues in .this action for the value of the horse, wagon and harness. He is not entitled to recover:
Judgment is reversed, and cause is remanded for a new trial. | [
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Hiur, C. J.
Baker Ballew, the appellee, brought suit in equity against appellants, who are the brothers and sister of his deceased wife and her next of kin, to quiet his title to a half block of ground in Mena. They answered, asserting title to said property, and by cross-complaint sought to recover of Ballew other property in the hands of other persons, who were made defendants to the cross-complaint, and also sought to hold Ballew trustee for them for another lot in Mena alleged to have been bought with money belonging to his deceased wife of which title was taken in himself, and for a judgmént against him for money received from his wife. On motion the court struck out all that part of the cross complaint not relating to the half block mentioned in the complaint. The striking out of these other matters is assigned ’ as error. Section 6088, Kirby’s Digest, prescribes the office of a cross-complaint where parties other than the plaintiff are proceeded against. Third parties and co-defendants can only be brought in where the cause of action affects the subject-matter of the principal action. Trapnall v. Hill, 31 Ark. 345. Such was not the case here, and the action of the court was right, so far as these third parties were concerned; and whether it was right or not as to the other lot in Mena and the money derived from Mrs. Ballew as .between them and Ballew is immaterial, in view of the opinion of the court' on the subject of the gift of the money to Ballew. The issue is thus limited to the half block concerning which the suit was brought. ■ The deed to this half block was made to the husband 'and wife jointly, and created in them an estate in entirety, and the survivor took the whole fee. Robinson v. Eagle, 29 Ark. 202; Branch v. Polk, 61 Ark. 388; Simpson v. Biffle, 63 Ark. 289.
It was shown that this land was purchased and improved with funds received by Mrs. Ballew from her father’s estate. She received $4,285 from that source, all in checks payable to herself, which she indorsed and delivered to her husband, and which he deposited to his own credit in banks at Mena. He . testified that she gave him this money. In some respects his testimony is inconsistent with established facts, and in several matters he is contradicted by both interested and disinterested witnesses, and of course this weakens the force of his testimony that his wife gave him her inheritance. But it is an established fact that she did indorse and deliver these checks to her husband, and that he forthwith deposited them to his own credit, and thereafter drew upon these deposits as his own from time to time, and it is also established by a disinterested, uncontradicted and unimpeached witness that Mr. and Mrs. Ballew brought him the deed in question for information in regard to its phraseology in reciting the receipt of the consideration. Her attention was shown to have been sharply drawn to the deed made jointly to her husband and herself, and that it was so carefully scrutinized by her that she sought advice in regard to a formal matter therein, and was seemingly satisfied with it being made jointly to her husband and herself, notice of which was thus shown to have been brought to her before the deed was recorded and probably before it was accepted. Ballew testified that it was made to them jointly pursuant to an understanding and agreement to that effect between them. Against these established facts there is no testimony except evidence of inconsistent and contradictory statements of Ballewj but these statements are only as to the time, method and manner of the gift to him, and not of the -fact of gift itself, which is strongly corroborated by her delivery of the checks to him and the purchase with'her knowledge of the property in their joint name, and the improvement of it through the money inherited by her. The following statement in Hannaford v. Dowdle, 75 Ark. 127, is as applicable to this case as to that: '
“Appellees invoke the elementary rule of law that gifts from the wife to the husband aré to be scrutinized with great jealousy. Citation of authority is unnecessary to sustain this salutary rule. But, after all, the demand for such scrutiny is to ascertain, and not to defeat when ascertained, the real intention of the parties, where the transaction is free from fraud. Notwithstanding that relation, the court will, after having ascertained the intent of the parties to the transaction and found that there had been no fraud or imposition, uphold rather than frustrate their acts.” The property was improved to the extent of some $1,500 or more before Mrs. Ballew’s death, and it was plain that she knew this money was deposited to her husband’s credit or under his control, for otherwise these expenditures could not have been made as he owned little property and had no cash with which to meet small debts before this inheritance.
The gift was not an unnatural one. This' couple had been married nearly thirty years, and were childless, and the husband was poor, while the brothers and sister had each presumably as' much from the father’s estate as had Mrs. Ballew, for the testimony showed she received this money in a division of the estate of her father. There is nothing to contradict Ballew’s statements that his wife was grateful to him for years of kindness and consideration to her.
The chancellor has credited the testimony proving the gift, and, after it is weighed and scrutinized as required in such cases, the court is satisfied that the finding was correct, and the decree is affirmed. | [
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McCuuuoch, J.
The question presented here is whether or not a prosecuting attorney is entitled to a commission on money collected during his term of office on a judgment rendered during the term of his predecessor upon a forfeited bail bond. It is provided by law that prosecuting attorneys shall receive a salary of two hundred dollars per annum (Kirby’s Digest, § 7374) and in addition thereto the fees enumerated in the following section of the statutes, viz.:
“Sec. 3488. Prosecuting attorneys, when present and prosecuting cases, either in person or by his deputy in justice court.
For each judgment obtained on complaint, information or otherwise, in the name of the State or any county.....$ 5.00
For each conviction or indictment, presentment or information for misdemeanor or breach of the peace. . 10.00
For each conviction in cases of gambling............25.00
For each conviction on indictment for any felony, not capital ..........................................25.00
For each conviction of homicide, other than capital......35-°°
For each conviction in capital cases...................75.00
“They shall be allowed ten per cent, of the amount on forfeited bail bonds and recognizances.
“Prosecuting attorneys shall be entitled to the-same fees for prosecuting in cases of misdemeanors before justices of the peace as in the circuit court.” Act February 25, 1875, sec. 4, as amended by act of December 13, 1875, and act March 13, 1893.
Now it is obvious that it was the intention of the lawmakers that a prosecuting attorney should receive a stated salary to be paid by the State, and fees which should be earned according to the schedule prescribed in the section just quoted. His compensation, aside from the salary, is based entirely upon what he should earn. He is not a collecting officer, and therefore not entitled to commissions on collections. The commission on forfeited bail bonds and recognizances is allowed as compensation for services performed in obtaining the judgment on the forfeiture. For this service he is to receive $5.00 upon rendition of the judgment and a commission of ten per cent, upon the amount collected. The commission is earned when the judgment is rendered on condition that the amount shall be finally collected, and is payable only as the judgment is collected.
It follows that he is not entitled to commission on a judgment obtained for the State by his predecessor. Any other construction of the statute would give him fees which he does not earn — a mere gratuity- — which is evidently- not contemplated by the statute' according to any reasonable interpretation.
Judgment affirmed. | [
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Wood, J.
(after stating the facts.) First. One who is injured by the mere negligence of another can not recover at law or in equity any compensation for his injury if he by his own or his agent’s ordinary negligence or willful wrong contributed to produce the injury of which he complains, so that, but for his concurring and co-operating fault, the injury would not have happened to him. Little Rock & F. S. Ry. Co. v. Pankhurst, 36 Ark. 371; Little Rock & F. S. Ry. Co. v. Cavenesse, 48 Ark. 106; Kansas City So. Ry. Co. v. McGinty, 76 Ark. 356. This doctrine of contributory negligence, so often announced by this court, was correctly applied to the facts of this record in instruc tion numbered four given on motion of appellant. The court, having given this, did not err in refusing appellant’s request numbered six, which embodied substantially the same idea. The court however erred in giving. instruction number one. This instruction fixed a liability upon appellant if appellee delivered the box to his agent and gave him proper directions for its shipment, and if the agent delivered the box to the appellant and appellant failed or neglected to deliver same to appellee. The instruction in this form wholly ignores the evidence tending to prove that the box was marked by appelllee’s agent "Nashville, Tenn.” Eor, although appellee delivered the box to his agent, Johnson, and directed him how to ship same, it appears from the testimony of Johnson himself (read in the motion for continuance and accepted as evidence in the case) that he failed to carry out stich instructions. Appellee left the box in controversy with him "to be sent to the plaintiff (appellee) at Nashville, Ark.,” and to be marked or addressed accordingly, but the box “was addressed Nashville, Tenn., instead.” The conclusive inference froim this testimony is that Johnson addressed the box “Nashville, Tenn.”, when he should have addressed or marked it “Nashville, A!rk.” But the instruction overlooks this evidence, and makes appellant liable if appellee directed his agent properly how to ship the box, athough the’agent may have failed to carry out his instructions.
The third instruction given at the instance of appellee was also erroneous. It placed the burden of proof upon the appellant to show that the box of goods was addressed to “J. W. Hill, Nashville, Tenn.,” provided appellant issued its bill of lading to appellee or his agent showing that the box was addressed to “J. W. Hill, Nashville, Ark:” Appellant on cross-examination objected to the introduction of the receipt as soon as it ascertained that the receipt had not been properly authenticated. The court should then have sustained the objection and excluded the receipt as evidence unless appellee would then or thereafter properly prove its execution. Taking the receipt out of the case as the court should have done, the Instruction numbered three for appellee was abstract, there being no evidence upon which to ground it. But, even if it were conceded that the receipt was properly authenticated, and therefore properly in evidence, the instruction would still be erroneous. For the probative effect of the receipt was simply to show that appellant had received a box of goods marked Nashville, Ark. The receipt tended to contradict appellant’s witness, Johnson, who testified that the box was marked “Nashville, Tenn.” The receipt was not conclusive evidence of how the box was marked. While a receipt is usual, it is not essential to the duty or contract of carriage. Southern Express Co. v. Kaufman, 12 Heisk. (Tenn.) 161. It was one of the evidentary facts tending to show that the box was marked in a certain way, while other evidence tended to show that it was marked in a different way.
In such a case, the evidence being all before the jury and conflicting, there was no shifting of the burden of proof. The burden was on the appellee to make out his case by a preponderance of the evidence.
Second. Appellant contends that, if liable at all, it is not liable for more than fifty dollars, under the following provision in the receipt: “If the value of the property is not stated by the shipper at the time of the shipment, and specified in the receipt, the holder thereof will not demand of the company a sum exceeding fifty dollars for the loss or damage to the shipment receipted for.” According to the terms of the receipt this provision is applicable in the event the shipment is lost or damaged. Appellee contends with much plausibility that the box in this case was neither lost nor damaged, but was converted by appellant, and that therefore the above provision limiting its liability is not applicable. We need not pass upon that question.. For, conceding that the receipt was in the case, the appellant can not claim the benefit of it, because it is not based upon any consideration. St. Louis, I. M. & S. Ry. Co. v. Marshall, 74 Ark. 597; St. Louis, I. M. & S. Ry. Co. v. Coolidge, 73 Ark. 112.
For the errors indicated the judgment is reversed, and cause remanded for new trial. | [
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Hiel, C. J.
This is an action brought by the State of Arkansas on the relation of the Attorney General against the Hammond Packing Company, alleging that it was doing business in the State contrary to the Anti-trust Act of 1905. After answer a commission was issued to a commissioner in Chicago to take testimony. Upon a refusal to comply with the order of court requiring production of witnesses and documents, after notice, the answer was stricken out, and judgment rendered against the appellant as by default, and it appealed.
1. The nature of the “conspiracy to defraud” denounced by section one of the act of January 23, 1905, the “Anti-trust Act,” is the first subject requiring attention. Appellant contends that the complaint, framed in the language of that section, does not constitute a cause of action because the acts therein complained of constitute a crime, and under art. 2, § 8, of the Constitution of Arkansas, “no person shall be held to answer a criminal B charge unless on presentment or indictment of a grand jury”B (with certain exceptions not pertinent to this issue).’ |
The same contention was made in regard to the offense described -in the ist section of the Anti-trust Act of 1899. Acts 1899, p. 50. The difference between section 1 of the act of 1899 and section 1 of this act is immaterial on this issue. The court, in construing the act of 1899 in State v. Lancashire Fire Ins. Co. 66. Ark. 466, ruled this point, it is true, sub silentio, against the contention of the appellant. That an attempted monopoly, an agreement to restrain the freedom of trade, was a criminal conspiracy at common law is undoubtedly true. This subject is fully discussed, and also the applicability of the law of criminal conspiracy to modern combinations in restraint of trade, in Eddy on Combinations, § § 335-336, and Beach on Monopolies, § § 77~7&\
When the ingredients constituting the criminal conspiracy at common law and the ingredients constituting the “conspiracy to defraud” under anti-trust acts are examined, it is apparent that the offenses are not identical. The latter is doing business while a member of an illegal combination, while the former is a conspiracy to do an unlawful act or a conspiracy to do a lawful act in an unlawful manner. The remedies against the common-law conspiracy were indictment for the criminal conspiracy and an action on the case for damages by an aggrieved party or quo warranto by the State against an offending corporation. Eddy on Combinations, § § 338, 371. This action is entirely different, and is purely a statutory action to recover the penalties of the statute for doing business in the State contrary to its terms. These penalties are two-fold: one a money judgment for each day the offense continues, and the other as to corporations a forfeiture of charter if a domestic corporation and forfeiture of right in the State if a foreign corporation. Anti-trust Act, 1905, § § 2 and 3,
Railway Company v. State, 56 Ark. 166, is applicable here.
It was therein demonstrated that a statutory penalty for a matter not a crime at common law and not made a crime by the statute was recoverable in a civil action, and was not a “criminal charge,” within the meaning of sec. 8, art. 2, of the Constitution. The fact that there is a further penalty in case the offender is a corporation — that penalty being the civil death of the corporation if it is created by this State and its exile if created by another State— can not change the effect of the money penalty. It is just an added penalty where the offender is an artificial person, and falls equally, to the extent of the State’s power, on foreign and domestic corporations.
It is sought to distinguish the Hartford case (Hartford Fire Insurance Co. v. State, 76 Ark. 303), from this one on the ground that in the Hartford case only the ouster of a foreign insurance corporation was considered, while this case presents an appeal from a money judgment only. The matter of money judgment in the Hartford case was covered by an agreement of parties (see page 305), and the decision was limited to the facts presented, but it was expressly held that the corporation had subjected itself to the penalty of the act. That this judgment is not of ouster as well as for the money penalty is not a cause of complaint by. appellant, for it is liable to that penalty likewise if liable for the money penalty. Therefore the court treats the action as purely a statutory one for the recovery of a penalty named in the statute.
2. It is contended that sections 8 and 9 of the anti-trust act of 1905 subject defendants proceeded against under them to unreasonable search and seizure of papers, books and documents, contrary to .the 4th amendment of the Constitution of the United States,' and contrary to a similar provision in section 15, art. 2, Constitution of Arkansas.
The first ten amendments of the Constitution of the United States operate on the Federal Government only, and can not be invoked against State legislation. Jack v. Kansas, 199 U. S. 372; Brown v. New Jersey, 175 U. S. 172. Where, however, the provisions of a State constitution are identical with provisions in these amendments, the courts of the State should, and do, regard as controlling decisions of the Supreme Court of the United States upon them.
Appellant relies upon Boyd v. United States, 116 U. S. 616, as establishing the principles that the “search and seizure” clause reaches to an order of court under a statute providing for a production of books and papers under penalty that the complaint be confessed in an action to recover a penalty; and if such order effects an unreasonable search, it is contrary to such provision; and actions seeking penalties should in this respect be treated as criminal cases.
The scope of Boyd v. United States is narrowed when ap plied to corporations by the recent decision in Hale v. Henkel, 201 U. S. 43, and the case at bar must be determined in these respects by the last enunciation of -that court on this subject. It is established in Hale v. Henkel that the interdiction of the 5th amendment to the Federal Constitution that “no person * * * shall be compelled in any criminal case to be a witness against himself” does not apply to corporations but to natural persons. The exact language above quoted is also found in section 8, art. 2, Constitution of Arkansas. It is further settled by Hale v. Henkel that a corporation is entitled to immunity by reason of the 4th Amendment from unreasonable search.
As to whether the order in question was an unreasonable search of appellant’s books is not properly before the court under the facts. The order for the production of the books was coupled with an order to produce named witnesses for oral examination, and J. Ogden Armour, one of those named in the order, was the first witness called for oral examination. Instead of producing him or showing inability to do so, the appellant declined in foto to obey the order.
If appellant bad obeyed so much of the order as required the production of witnesses for oral examination, or showed its inability to do so, and showed an attempt to comply with the order to that extent, and had refused to obey the order as to the production of books and papers, then the question would be squarely for determination whether the order in question amounted to an unreasonable search of books and papers. It is pointed out in Hale v. Henkel that a subpoena duces tecum which practically called for all the books, papers and documents of a large business to be brought into court under a sweeping clause was unreasonable and void, but the fact that it was .void as to the production of the books and papers did not justify its disobedience as to appearing to testify. In this case the order is very broad, but its harshness is somewhat ameliorated by a proviso that at the examination the witnesses and books should not be required to be produced at any one time in such numbers as to interfere with the ■ business of the defendant. But, as indicated, it would be obiter dictum to determine the reasonableness of the order in question in so far as production of books and papers is concerned. Sufficient to say that the statute is valid under the decision in Hale v. Henkel, in so far as it authorizes a reasonable order for the production of books, papers and documents of a corporation over which the State has control, and what may be a reasonable order must be determined in each case as it arises.
Foreign corporations doing business in this State under laws permitting them to do -so would in this respect be subject to like State control as domestic corporations. Woodson v. State, 69 Ark. 521; Railway Company v. Gill, 54 Ark. 101; St. Louis & San Francisco Railway Company v. Gill, 156 U. S. 649. The control of the Government over State corporations engaged in interstate commerce surely can not be as far reaching as the control of a State over a foreign corporation within its borders by its permission and corporations created by it; and as Hale v. Henkel sustains the right of the Government to require a production of books, papers and documents in order for the Government to ascertain in a- proper action whether a corporation engaged in interstate commerce is proceeding in its business along legal lines, provided such order is reasonable in its terms, it follows, a fortiori, that -a State may do so over foreign and domestic corporations doing business under authority of its laws.
The question narrows to whether the statute, in so far as it authorizes the order to produce witnesses, is constitutional. The provisions of sections 8 and 9 are attacked as unreasonable, in derogation of natural rights and various clauses of the State and Federal constitutions. These sections, with a few differences immaterial to this issue, are copied from the Missouri anti-trust act, and the clauses under fire here were recently sustained as constitutional by the Supreme Court of Missouri in State v. Standard Oil Co., 91 S. W. Rep. 1062.
It is insisted here, as it was in Missouri, that this statute lays a duty on a corporation to produce its officers and employees, or be defaulted for a failure to do so.
If these' provisions mean that the corporation must be a policeman, and bring into court on demand its president, bookkeeper or doorkeeper vi et armis, certainly it would be an unreasonable imposition. An analysis of the provisions, however, will not justify such construction. These sections evidently mean this, and nothing more: that the corporation shall on demand request any given officer, agent or employee to be present at the time named for examination as a witness (and in case of production of books and papers that the given officer or agent produce the given books or papers), and on a failure to comply with these requirements that it be defaulted. Of course, this necessarily contemplates an honest effort to produce the testimony called for. When that is made, then the statute is complied with; when it is not, as in this case -where the defendant corporation refused to obey any part of the order, then the statute is not complied with, and that brings up the gravest question of .the case.
3. Is section 9 authorizing the answer to be stricken out and default judgment rendered when the defendant refuses to obey the order made pursuant to section 8 due process of law? The case most strongly pressed upon the court to sustain the contention that such action is not due process is Hovey v. Elliott, 167 U. S. 409.
The Supreme Court of the District of Columbia, sitting as a chancery court, made an order on defendants to pay over certain funds which had been paid them by a receiver of the court. This order was disobeyed, and, after citation to show cause against it, the answer of defendants was stricken from the files, and thereafter the bill was taken pro confesso, and judgment rendered accordingly. Subsequently suit was brought on the judgment in New York, and the case reached the Supreme Court of the United States on the question whether this was due process of law. Mr. Justice White for the court learnedly and exhaustively reviewed the authorities as to the power of a chancery court to punish for contempt by striking out the answer and proceeding on the bill as confessed, and demonstrated that such power did not exist. He says that in England no single case is found sustaining it, and in America only two, Walker v. Walker, 82 N. Y. 260, and Pickett v. Ferguson, 45 Ark. 177. These two cases are condemned as unsound. It is interesting to note that the court in Pickett v. Ferguson simply followed the New York case of Walker v. Walker, but Mr. Justice Eakin filed a dissenting opinion, and reviewed the authorities on the subject, and stated the law as it was done subsequently by Mr. Justice White in this case. The court, after reaching the conclusion that the chancery court did not possess the power to disregard an answer which was in all respects sufficient and had been regularly filed, and ignore the proof taken in support of it, then passed to the question whether a judgment thus rendered contrary to law was void for want of jurisdiction and subject to collateral attack. It was determined that the judgment was one substantially without hearing, and analogous to a judgment determined upon issues not raised in the pleadings and in the absence of the party. The decision was •expressly rested “on the want of power in the courts of the District of Columbia to suppress an answer of parties defendant, and after so doing to render a decree pro confesso as in case of default for the want of an answer.” In the case at bar the court did not lack power to strike out the answer and proceed as in case of default if it was competent for the State to confer that power on the court. Hence the question here is, not the power or want of power in the court, but the power or want of power in the State to enact the statute under review. If the court in Hovey v. Elliott had held, as did this court in Pickett v. Ferguson, that the power to strike out the answer and proceed as in case of default was an inherent power of the court, and still a judgment rendered under it was taking property without due process of law, then Hovey v. Elliott would be conclusive of this issue. But the decision was predicated upon the premise that the power exercised was contrary to the law of the land, and the sequence followed that property was taken without due process.
In the first judiciary act passed by Congress, in 1789, a statute was enacted giving United States courts in the trial of actions at law the power to require the parties to produce books and writings in their possession or control which contain evidence pertinent to the issue, in. cases and under circumstances where the same might be compelled in chancery, and this was the penalty named for a violation of such order:
“If a plaintiff fails to comply with such order, the court may, on motion, give the like judgment for the defendant as in cases of nonsuit; and if a defendant fails to comply with such order, the court may, on motion, give judgment against him by default.” Rev. Stat. § 724.
An examination of the 3 Federal Statutes Annotated, pp. 2-5, show this statute has been constantly applied by many of the ablest' jurists who have adorned the Federal bench for the past 118 years, and in none of the many decisions applying it and defin ing its scope has it been held contrary to due process of law.
The Revised Statutes of Arkansas, adopted in 1837, gave the ' power to any court of record to compel a party to a suit pending therein to produce any books, papers and documents in his possession or under his control relating to the merits of such suit or to any defense therein. It was provided, as a penalty for failure to obey such order, that the court may nonsuit him, or strike out any pleas or notice of setoff or debar him from any particular defense in relation to such books, papers and documents. Rev. Stat., ch. 116, § 88-92, now found in Kirby’s Digest, § § 3074-3078. There were similar provisions enacted for courts of chancery to proceed as on confession against a party failing to obey an order to produce books, papers and documents. Kirby’s Digest, § § 3079, 3080.
These statutes have been constantly invoked in the courts of this State almost since its admission into the Union, and their enforcement not opposed as depriving the recalcitrant party of his property without due process. The section under inquiry does not differ in principle or much in detail from section 724 of the Federal statutes nor these statutes so long upon the statute book of this State, in so far as striking out the answer is concerned.
The industry of counsel for appellee develops the fact that such statutes are common in other States. They may be found referred to in the brief. These considerations are important only as indicating that such statutes have long been accepted by bench and bar, State and Federal, as being part of the law of the land. This question was before the Supreme Court of Mississippi under a statute authorizing a default for a failure to answer interrogations; and the statute was attacked as unconstitutional on the strength of the opinion in Hovey v. Elliott. The court said: “It was a declaration of the Magna Charta that no one should be deprived of a right without being heard in his defense; and this principle is embodied in section 14 of our State Constitution, which provides that 'no person shall be deprived of life, liberty or property, except by due process of law.’ However wholesome this doctrine is when applied to courts and to persons exercising judicial or quasi-judicial functions, it has never been supposed that it deprived the Legislature of the power of changing the rules. of evidence, or of modifying or abrogating altogether the presumptions indulged by the principles of the common law. If the Legislature may provide for a discovery of evidence in the hands of the adversary, it must be competent for it to impose upon such party the conditions of a failure to make such discovery; for when the Legislature requires the discovery to be made, and imposed the conditions of a refusal, such conditions must become the law of the land, and to pursue the statute is due process of law. (Bagg’s case, cited in Hovey v. Elliott, 167 U. S. 416.)” Illinois Cent. Railroad v. Standford, 75 Miss. 862.
This case is criticised as reasoning in a circle, but the criticism is not just if the statute is valid. Of course, an invalid statute gives no force, and is not the law of the land, and proceedings under it are not pursuant to due process; but where the statute is valid, then its provisions become as much the law of the land as any common law inherited from England. The question then passes to whether the State has power to enact a statute, visiting the penalty of a default judgment upon a party required to produce evidence in court who fails and refuses to do so. The power of the State in such matters is thus stated by Mr. Justice Brewer, speaking for the Federal Supreme Court: “The State has full control over the procedure in its courts, both in civil and criminal cases, subject only to the qualification that such procedure must not make a denial of fundamental rights or conflict with specific and applicable provisions of the Federal Constitution. * * * The State is not tied down by any provision of the Federal Constitution to the practice and procedure which existed at common law. Subject to the limitations heretofore named, it may avail itself of the wisdom gathered by the experience of the century to make such changes as may be necessary.” Brown v. New Jersey, 175 U. S. 172. See, also, Wilson v. N. C., 169 U. S. 586: Hurtado v. California, 110 U. S. 516.
In Louisville & Nashville Ry. Co. v. Schmidt, 177 U. S. 230, Mr. Justice White for the court said, at page 236: “It is no longer open to contention that the due process clause of the 14th Amendment to the Constitution of the United States does not control mere forms of procedure in the State courts or regulate practice therein. All its requirements are complied with, in the proceedings which are claimed not to have been due process of law, provided the person condemned has had sufficient notice and an adequate opportunity afforded him to defend.” See also Simon v. Craft, 182 U. S. 436.
Applying these principles, it can not be doubted that the statute in question, like section 724 of the Rev. Stat. of the United States and sections 3079, 3080 of Kirby’s Digest, is a matter of procedure and practice in procuring testimony in trials and enforcing orders for production of material and relevant evidence, and -in the proceeding leading up to its enforcement it requires sufficient notice and an adequate opportunity to defend, first against the order, secondly it provides for an opportunity, after notice, to obey it, before any default can be taken; and these provisions meet the requirements of the 14th Amendment.
4. Appellant presents -arguments against the construction placed on section one of this act in Hartford Ins. Co. v. State, 76 Ark. 303, but the rule of stare decisis forbids a re-examination of these questions.
Other matters have been presented and considered, but the views expressed heretofore are fatal to appellant’s contentions.
Judgment affirmed.
Battue, J., dissents. | [
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Riddick, J.,
(after stating the facts.) This is an appeal by plaintiffs from an order of the chancery court confirming a report of a master appointed to state an account between the plaintiffs and defendants in this case. The report of the master thus confirmed was the second report made by him, exceptions made by plaintiffs to the first report having been sustained and the master ordered to restate the account.
The original decree adjudging the rights of the parties and ordering a reference to a master was made in September, 1903. The master took evidence and filed his report, and on the nth day of June, 1904, the plaintiffs filed their exceptions thereto, and moved to strike 'the report out on the ground that the master had taken depositions and heard the case without notice. After further setting out various specific objections to the report, plaintiffs ended their exceptions with the following words: “Plaintiffs move the court that, for the many errors and insufficiencies mentioned in their exceptions, the master’s report be stricken from the files, and the matter referred with directions to forthwith state a true and accurate account in accordance with the law and instructions of this court.” The court thereupon entered an order sustaining the exceptions generally, and ordered the master to restate the account.
Now, it will be noticed that, although the plaintiffs excepted to the report and moved to strike it out on the ground that it was based on depositions taken without notice, they do not ask that the master be ordered-to retake the depositions or to take further’ evidence, but only ask that the master be required to forthwith state a true and accurate account. For this reason, or because the court thought that the objection that the depositions were taken without notice was not well taken, or that the account could be restated on the depositions taken before the original decree, the fcourt did not direct the master to hear further evidence, but referred the account to the master for restatement. No objections were made to this order of the court, and no appeal taken by plaintiffs, either from it or the original decree. But, on the filing of the restated 'account, plaintiffs appeared by their attorney and excepted thereto, and, to quote the language of their exception, “for cause of exception state as in the original exceptions filed herein to original report, and further that no evidence has been adduced before the master since said original report on which to base a restatement.”
The court overruled these exceptions, and. confirmed the report.
The appeal taken in this case was over a- year after the original decree, and over a year after the judgment of the court ordering a restatement of the account, and those two judgments are not questioned. As the court did not, in ordering the master to restate the account, direct him to take frirther evidence, it was not his duty to do so, and the objection to his second report on that ground can not be sustained. If plaintiffs had desired to produce further evidence before the master, they should have asked a direction to that effect. But, instead of that, they asked the court to order the master to forthwith restate the account, which indicates that they did not consider that further evidence was necessary. 17 Enc. Plead. & Prac. 1073.
The other objection made by plaintiffs to this account can not be sustained, for the reason that it is not specific enough. The language of it is that they except as stated in their exceptions to the original report. But the two reports were not the same, for the master in the second report made material changes in his findings, sustaining some of the exceptions filed by plaintiffs to his first report. If any of the findings of the master in his second report were incorrect or not in compliance with the directions of the court, they should have been pointed out by a specific objec ‘tion in writing, for the statute so requires. Kirby’s Digest, § § 6336-6340. It would be obviously unfair to the chancellor to compel him to entertain an exception made in this form and to look through the long list of exceptions filed to the first report and compare them with the last report in order to ascertain the objections of plaintiffs to the last report. We must therefore hold that this exception was too indefinite to justify us in reviewing the order of the chancellor in overruling it and confirming this second report of the master. 17 Enc. Plead. & Prac. 1049; King v. Burdett, 44 W. Va. 561; Findley v. Findley, 42 W. Va. 372.
Eor the reasons stated the judgment of the chancellor is affirmed. | [
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Wood, J.,
(after stating the facts.) The failure of the commissioner appointed by the court to make sale. of the lands in the overdue tax proceedings to state in his report that he had given the notice as required by-the statute in such cases and his failure to attach such notice to his report were, at most, irregularities which did not affect the jurisdiction of the chancery court to confirm and approve same. The fourteenth section of the overdue tax act (March 12, 1881), while requiring the commissioner making the sale to report "his proceedings to the court,” and to “file it in the office of the court thereof,” does not set forth what the proceedings are that he is required to report, nor does the statute anywhere make the report he files the only evidence of what he did. The statute requiring the filing of the report of his proceeding provided that the report should stand open for ex ceptions, that if exceptions were filedAhey should be disposed of summari’y, that if any irregularity should be apparent the court should set aside sale, and order new sale, etc. Section 15 of ffiat act provides that “whenever a report of such commissioner shall be confirmed, all objections to the sale and the proceedings thereunder shall be adjudicated in favor of the validity thereof,” etc. These were not jurisdictional defects, but were irregularities which the confirmation and.approval of the report by the court rendered impregnable to collateral attack.
Likewise the failure of the commissioner to show in his report that the land in controversy was struck off to the State for any specified amount. Likewise the failure of the commissioner to show in his report that he had certified to the clerk of the county the lands that were struck off to the State, as required by section, 12 of the overdue tax act. " •
This court in the recent case of Kelly v. Laconia Levee District, 74 Ark. 202, held that the .failure of the commissioner, to certify to the proper county clerk the sale of certain lands to the State will not affect the' validity of a subsequent sale of such land by the State: We also said in that case that “the effect of confirmation was to' complete the sale, the court having jurisdiction.” That decision is controlling here'. See also other decisions of this court to the effect that, the court having jurisdiction, its decree will not be set aside for irregulaiities on collateral attack. Johnson v. Lesser, 76 Ark. 465; Arbuckle v. Matthews, 73 Ark. 27; Clay v. Bilby, 72 Ark. 101, and the cases there cited.
Finding no error, the decree is affirmed. | [
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Battle, J.
“On the last day of November, 1901, Wilson & Beall, a firm composed of R. E. Lee Wilson and S. A. Beall, sold and by warranty deed of that date conveyed to appellant the southwest quarter of section 13 and the southeast quarter of the northwest quarter of section 13, township 12 north, and range 9 east in Mississippi County, Arkansas, which deed contained the following clause: “Wilson & Beall reserve all merchantable timber on said land same to be removed within two years from date.” On the 27th day of November, 1903, appellant instituted this suit in the chancery court of Mississippi County, alleging that appellee Wilson and his employees, John Merrill and J. H. Page, made codefendants, had entered upon the land and were cutting and removing timber therefrom, to the irreparable damage and injury of appellant, praying an injunction to restrain appellee and codefendants from cutting and removing the timber from the land.”
The defendants, appellees, answered and admitted the execution of the deed to appellant, and Wilson claimed the merchantable timber on the land conveyed under the reservation therein.
The depositions of witnesses were taken, and the cause was submitted at the October, 1905, term of court. The court found that the title to the merchantable timber on the land was never conveyed and did not pass to plaintiff, the appellant, and that the defendant-appellee, Wilson, is the owner of it, and rendered decree in favor of the defendants, dismissing the complaint for want of equity.
Neither the complaint nor the evidence in this case show that the plaintiff was entitled to relief by injunction. What is said in Myers v. Hawkins, 67 Ark. 413, is applicable and appropriate in this case; .and nothing more, in addition, need be said in this suit. See also Western Tie & Timber Co. v. Newport Land Co., 75 Ark. 286.
The decree of the chancery court is modified so as to dismiss the complaint for want of equity, without prejudice to plaintiff’s right to bring an action at law for damages, or for the recovery of timber or both. | [
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Battre, J.
On the 22d day of October, 1898, the Union Central Life Insurance Company, in' consideration of the sum of $73.56 paid, and of that sum to be paid at the home office of the company on the 30th day of October of each year after that date, executed a policy of insurance upon the life of John A. Harbison for the sum of $2,000, to be paid to Millie Wells v.ithin sixty days after the receipt of notice and satisfactory proof of the death of Harbison. It was stipulated in the policy that the sum of $73.56 should be paid annually as a premium on the policy, that is to say, a premuim of $73.56 should be paid at the home office of the company on the 30th day of October of each year after the execution of the policy, and that “the failure to pay any of the first three annual premiums, o.r any notes, or interest upon notes, given to the company for any premium or part of premium, on or before the days upon which such premiums, notes, or interest become due, shall avoid and nullify the policy without any action on the part of the company or notice to the insured or beneficiary, and all payments made upon the policy shall be deemed earned as premiums during its currency.” The policy also contained this stipulation: “No suit to recover under this policy shall be brought after one year from the death of the insured.”
The second premium on the policy was due on the 30th day of October, 1899, and no part of the same was paid, and has not since been paid. John A. Harbison, the insured, died on the 23d day of November, 1899, and the action on the policy was commenced on the 19th of September,- 1904, more than four years after the death of the insured.
The policy was avoide'd by the failure to pay the second premium at the time it was due.
This action was barred, it having been brought more than one year after the death of the insured. It was barred before the enactment of the act, entitled “An act to fix the time within which an action may be maintained in the courts of this State on policies of insurance,” approved March 12, 1901. The act was prospective, and did not apply to policies executed before its enactment.
Judgment affirmed. | [
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Riddick, J.
This is an appeal by the defendant, John Scaggs, from a judgment of the Logan Circuit Court for the Northern District convicting him of burglary and sentencing him to confinement in the State penitentiary for a term of three years.
We have examined the assignment of errors set out in the brief of counsel for appellant, and in our opinion none of them can be sustained. The instructions given by the court fairly and clearly presented the law of the. case to the jury. The evidence is not set out in full in the bill of exceptions, only the substance thereof being stated, but so far as set out it shows that it was sufficient to sustain the judgment. There is only one ruling of the court that seems open to doubt, and this was made in reference to certain testimony of Dr. J. C. Harrod. This witness, who was called by defendant, related the circumstances under which the prosecuting witness, Attwood, had made the confession implicating himself and defendant in the crime. Dr. Harrod said that after Attwood was arrested he was induced to make a confession by the officers and himself, who told Attwood that he had as well confess, for Scaggs had already told all about the matter.” Scaggs, the defendant, had in fact told nothing, but Attwood, supposing from the statement of the officers that he had confessed, made a confession himself. Thereupon one of the jurors asked Harrod what caused him to suspect Scaggs? The defendant by his counsel objected to this question, but the court overruled the objection, and permitted the witness to answer. Witness then said that he believed that the defendant was guilty for the reason that defendant had said that Attwood had the McNabb pistol, and that they afterwards found the pistol in defendant’s possession; that from this fact and the statement of Attwood he had drawn his conclusion of the guilt of defendant. Testimony had been introduced tending to show that the parties who committed the burglary had previously on the same night stolen MeNabfo’s pistol, and had it with them at the time of the burglary. The pistol was fired while they were in the act of committing the burglary, and the hole made by the bullet in the floor and the bullet itself indicated that it came from a large pistol of the same caliber as the McNabb pistol. The fact that the defendant denied having this pistol, and that subsequently it was found in his trunk, tended to connect him with the burglary; but it was improper to permit this witness to give to the jury his opinion that the defendant was guilty, even though he accompanied the opinion with a statement of the facts on which the opinion was based. But, although defendant objected to this evidence, the transcript does not show that he saved any exceptions to this ruling of the court, nor is the matter-referred to in his motion for a new trial or his brief filed in this court. We take it therefore that no importance was attached to this evidence in the trial court; that it was admitted through inadvertence, and would have been excluded, had the attention of the court been directly called to it by an exception or motion to exclude.
On the whole case we see nothing that would justify a reversal. The judgment is therefore affirmed. | [
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Wood, J.
First. The court did not err in overruling the motion to transfer to law. The complaint stated that plaintiff was in possession of the land, set up his title, and asked to have same quieted. This gave the chancery court jurisdiction. Lawrence v. Zimpleman, 37 Ark. 645. The court must look to the allegations of the complaint, in limine, to ascertain whether it had jurisdiction. The complaint did not affirmatively show that the defendants were in possession, as alleged in the motion to transfer.
The chancery court did not lose its jurisdiction because defendants moved to transfer to law, alleging that they were in possession. Defendants answered, alleging a tax title, and setting up adverse possession under the two years’ statute of limitation. But nothing was developed in the proof to show that the cause was not one of original equitable cognizance.
The lands, it appears from an' agreement of record', were wild and unoccupied. The appellee had the legal title. He asked to have appellants’ tax title cancelled as a cloud on his title.
Second. Appellants’ tax title was void because of the failure of the clerk of the county court to comply with section -7086 of Kirby’s Digest, as often held by this court. Martin v. Allard, 55 Ark. 218; Cooper v. Freeman Lumber Co., 61 Ark. 36; Taylor v. State, 65 Ark. 595; Logan v. East Arkansas Land Co., 68 Ark. 248; Birch v. Walworth, 79 Ark. 580.
Appellee had the right to have this title cancelled unless barred by laches or the two years’ statute of limitations set up as defenses.
Appellants contend that appellee failed to pay taxes for seven years, that there were, after the sale of the lands for taxes, three transfers of record of which appellee was affected with notice, and a great increase in the value of the land, and that these facts should bar appellee by laches from maintaining this suit. In the recent case of Jackson v. Boyd, 75 Ark. 194, we held that, “until there is an interference with possession, there is no occasion for action, and payment of taxes by another is not sufficient of itself to call for action;” also, that “the bare lapse of time will not cure defects in an invalid tax title.” We have held also that conveyances, “payment of taxes and color and claim of title are all insufficient to start the statute of limitations.” See Calloway v. Cossart, 45 Ark. 81.
In Rozell v. Chicago Mill & Lumber Co., 76 Ark. 525, we said: “If the land is wild and’unoccupied, and the delay has not prejudiced the rights of the defendants, they have no reason to object on that ground” to quieting the title of plaintiff.
Appellants, deriving their title from the void tax sale, had notice of the defects therein. They can not claim that they were injured or misled by any omissions of appellee to bring suit or pay taxes. See Black v. Baskins, 75 Ark. 382. They had notice of his title and the defects of their own. So the question is, will a failure to pay taxes for seven years bar the owner from maintaining a suit to cancel a void tax deed and other conveyances based thereon, where those acquiring the tax deed have paid the taxes continuously since their purchase for a period of five years, and where the lands since the purchase for taxes have greatly increased in value? The law in our State will divest the true owner of his title to land that has been in the actual open, continuous, exclusive and adverse possession of another for a period of seven years, and will invest the adverse occupant with the title thereto. Section 5056, Kirby’s Digest; Crease v. Lawrence, 48 Ark. 312; Jacks v. Chaffin, 34 Ark. 534; Logan v. Jelks, 34 Ark. 547; Wilson v. Spring, 38 Ark. 181.
Where the lands are wild and unincloséd, the law makes seven years’ successive payments of taxes under color of title equivalent to seven years of acutal adverse possession, and vests 'the title to süch lands in one who shows that he has paid the taxes during the period required by the statute. Section 5057, Kirby’s Digest; Towsen v. Denson, 74 Ark. 302.
Under these statutes and decisions the owner of the land, as well as the adverse claimant, knows that there is no divestiture of title unless the conditions obtain as prescribed.
While it is true that the length of time during which a party may neglect to assert his rights and not be guilty of laches varies with the peculiar circumstances of each case, and is subject to no arbitrary rule like the statute of limitations (Halstead v. Grinnan, 152 U. S. 416; Brinkley v. Willis, 22 Ark. 1), yet, in the absénce of some supervening equity calling for the application of the doctrine of laches, a court of chancery should and will by analog}' follow the law, and not divest the owner of title by lapse of time shorter than the statutory period of limitations. McGuire v. Ramsey, 9 Ark. 518; Ashley v. Rector, 20 Ark. 359-377; McGaughey v. Brown, 46 Ark. 25; Ringo v. Woodruff, 43 Ark. 469.
The owner has two years to redeem from tax sale. No statute of limitation begins to run against him until the expiration of that period, and equity, by analogy, should not start laches against him until that time, and should not bar him from the assertion of his title until seven years after the period for redemption, unless he has done something or omitted to do something more than merely to fail to pay, and thus to permit the adverse claimant to pay • the taxes. There is nothing in this record to show that appellee had acquiesced in the assertion of adverse rights by appellants. Appellee had no actual notice of appellants’ claim. Had possession been taken, appellee would have been affected with nbtice that appellants were claiming in their own right under their recorded deeds. Far gason v. Edrington, 49 Ark. 207. But such was not the case. There was nothing to put appellee on notice that appellants were claiming the land in their own right. The payment of taxes for only five years, even with a great increase in the value of the land, we do not think would justify a court of equity in depriving the true owner of the right to have his title quieted, because the payment of taxes gave appellants no right to or interest in the land; and a court of equity, as a condition precedent to the ruling sought, should, by appropriate order, see that the adverse claimant is reimbursed for the taxes paid by •him. Penrose v. Doherty, 70 Ark. 256. And, until there has been an equal or greater lapse of time than that shown by the legislative policy in the matter of limitations, a court of chancery should not divest the title of the owner by laches simply because, during his failure to pay taxes, there has been a great enhancement in the value of his land. We are of the opinion that the circumstances in this case do not entitle appellant to invoke the equitable doctrine of laches.
Third. The two years’ statute of limitations set up by appellants can not avail, for the reason that the proof does not show such occupation of or dominion over the property as is required to give title by adverse possession. The Supreme Court of Maine in Adams v. Clapp, 87 Me. 316, says: “In order to acquire title to wood-land, there must be actual use and occupation of it of such unequivocal character as will reasonably indicate to the owner visiting the premises during the statutory period that, instead of such use and occupation suggesting only occasional trespass, they unmistakably indicate and assert exclusive appropriation and ownership.”
This is the correct rule for courts and jurors to apply in determining from the facts of each particular case whether or not there is title by adverse possession, Measured by this rule, the chancellor’s finding in favor of appellee is supported by the preponderance of the evidence.'
The fact that Brown and his tenants, residents of the town of Earle, for several years cut timber from the land in controversy for firewood, rails, posts, boards, etc., to the extent of several hundred cords, and that no one except Brown and those whom he gavé permission cut the timber for the various purposes named after the tax purchase by Brown, would not of themselves constitute adverse possession. The cutting o'f the timber that was used for any one or all the purposes named was not all done upon one continuous and unbrokéñ incursion upon the land, nor by many continuous successive trespasses. The timber, in other words, was hot all cut at any one time, or continuously for á certain period. It was cut from time to time at intervals, as the occasion for it arose. The disconnected acts of cutting timber would indicate oft-repeated trespásses upon the land, but they were not sufficient in our opinion to' show such continuous and notorious occupation and dominion over the land as would indicate to the true owner an unmistákáble intention by another to own and exclusively appropriate the' land.
We see nothing in the facts of this case to differentiate it in principle from Connerly v. Dickinson, ante p. 258; Boynton v. Ashabranner, 75 Ark. 421; Driver v. Martin, 68 Ark. 551.
The decree is affirmed. | [
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McCulloch, J.
The parties to this action, J. L. Jenkins, appellant, and P. G. Jenkins, appellee, were partners in the mercantile business at Sherrill, Arkansas, under the firm name of “P. G. Jenkins,” and during the pendency of said partnership the real estate in controversy, a house and lot in Sherrill, was purchased, and the conveyance made to appellee. The purchase price was’ paid out of funds of the co-partnership, but the same was charged on the books of the firm to appellee. Appellant immediately moved into the house and occupied it as his home until the commencement of this action. Subsequent ■ to the purchase of ,the property the co-partnership was dissolved, appellee purchasing, the interest of appellant in the partnérship property for the sum Of- $4,583.16, the payment of which was evidenced- by a written receipt signed by appellant reciting that it was for his “entire interest in stock of merchandise, store fixtures and book accounts.”
■ ; Appellant contends that the property was purchased to be used as a home for him, that it was paid for out of partnership funds, and was partnership property, the title being taken in the name of P. G. Jenkins, which was the style of the firm name, and that on dissolution of the firm it was allotted to him as a part of his share in the partnership property, and'that appellee agreed to convey it to him.
Appellee, on the other hand, contends that the property was not purchased as partnership but, as his individual property; that, though it was paid for with funds belonging to the firm, the same was at the time charged to him on the books of the firm; that he permitted appellant to enter upon- and occupy the premises as his tenant under, an agreement that appellant should pay rent. He also denied that said property was allotted to appellant as a part of his share of the partnership property, or that he had ever agreed to convey it to appellant. ■
Each of the parties introduced considerable testimony in support of their respective contentions, and the conflict in the testimony is irreconcilable. The chancellor found the facts to be in favor of appellee, and, while the question is by no means free from doubt, we can not say that the finding is against the preponderance of the testimony. That being true, it is our duty, under the rule well established by the decisions of this court, not to disturb the finding of the chancellor.
Eearned counsel for appellant argue that, because the real estate was paid for out of partnership funds, it became, from that fact alone, partnership property. Not so. Whether the purchase is as partnership or individual property is a question of fact not controlled entirely by the use of partnership funds, that being only a circumstance indicating the intention of the parties. It may or may not become partnership property, according to the intention of the parties as manifested by all the surrounding circumstances and the use to be made of it, whether for partnership or individual purpose. 17 Am. & Eng. Enc. Law, 945; 1 Bates on Partnership, § § 266, 284; Richards v. Manson, 101 Mass. 482; Hatchett v. Blanton, 72 Ala. 423.
While it is undisputed that the property was paid for out of partnership funds, appellee testifies that he immediately caused the amount to be charged to himself on the books of the firm, and that appellant recognized it as a purchase for individual use by his agreement to pay rent. Under the circumstances, the amount of the purchase price being charged to appellee on the books of the firm at the time of the purchase, a presumption even does not arise that the purchase was for partnership uses.
Decree affirmed. | [
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BatTeE, J.
William R. Moore Dry Goods Company brought this action against J. H. Thomas on a promissory note executed by the defendant and D. G. Hart to the plaintiff, on the first day of October, 1897, for the sum of $245, and six per cent, per annum interest thereon from date until paid, and due on the first' day of October, 1898. The defendant answered, and pleaded payment and the statute of limitation. The issues in the action were tried by the court sitting as a jury. The evidence heard was in depositions. The court rendered judgment in favor of the defendant. It is stated in the judgment that the evidence was in writing and on file herein. The judgment overruling the motion for a new trial closes by saying, “And' as the proceedings in this case are in writing and on file, the plaintiff takes no bill of exceptions, but prays an appeal to the Supreme Court, which is granted.” No bill of exceptions was filed.
The depositions upon which the issues were tried were not made a part of the record by bill of exceptions or order of the court. The reference to them in the judgment was not suffi cient to make them so. School District No. 14 v. School District No. 4, 64 Ark. 488; Lawson v. Hayden, 13 Ark. 316; Boyd v. Carroll, 30 Ark. 527; Smith v. Hollis, 46 Ark. 17, 21; Ashley v. Stoddard, 26 Ark. 653; Scott v. State, 26 Ark. 521; Dillard v. Parker, 25 Ark. 503; Lenox v. Pike, 2 Ark. 14; Hall v. Bonville, 36 Ark. 491.
As no error appears in the record, the judgment is affirmed. | [
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McCulloch, J.
Appellant Henry J. Miller was convicted of the crime of libel under the following indictment (omitting the caption and formal part) towit:
“The said Henry J. Miller in the county and State aforesaid, on the 6th day of March, 1906, unlawfully, knowingly, wickedly and maliciously did write, print and publish a false, malicious and defamatory libel in the form of a newspaper article containing false, malicious and defamatory matters and things of and concerning one Robert E. Rogers, according to the terms and effect following: That is to say, ‘Bob Rogers offers a bribe and then commits forgery,’ thereby meaning by ‘Bob Rogers’ the said Robert E. Rogers, and thereby meaning by said words falsely and knowingly to charge that the said Robert L. Rogers had committed the crime of-bribery and forgery, he, the said Henry J. Miller, then'and there well knowing the said malicious and defamatory libel to be false, against the peace and dignity of the State of Arkansas.”
Appellant was proved to be the editor, proprietor and publisher of a newspaper called the Argenta Daily News, printed and published in the City of North Little Rock, Arkansas, and the prosecuting attorney introduced a witness who read to the jury, as a part of his testimony, á heading of that newspaper of the date of March 6, 1906, as follows: “Bob Rogers offers a bribe, and then commits forgery.”
No other part of the newspaper was offered in evidence. The defendant objected to the evidence, and also asked the court to instruct the jury that it was insufficient to sustain the allegation of indictment as to the publication of the libel. The court overruled both the objection to the evidence and the request for instruction, and exceptions to- the rulings were duly saved.
The court, at the request of the State’s attorney, instructed the jury, over the objection of the defendant, that the words read in evidence from the newspaper charged the person named with having committed the crime of forgery and bribery, and, if false, were libelous per se.
The indictment charges that the defendant printed and published the defamatory words in the form of a newspaper article, meaning to charge that the person named had been guilty of the crime of bribery and forgery. To sustain the allegation, the State was permitted to prove that th'e defendant printed and published a headline containing the alleged defamatory words, and the court held this to be sufficient to sustain the charge.
The headline of a newspaper or other publication is a summary or index of that which follows. “The line at the head or top of a page.” Webster. “The line at the top of the page, which contains the folio or number of the page, with the title of book (technically known as the running head), of the subject of the chapter or the page.” Century Dictionary. An article is defined to be “a literary composition on a specific topic, forming an independent portion of a book or literary publication, especially of a newspaper, review, or other periodical.” Century Dictionary.
In a certain sense the headline is a part of the article or chapter which follows, but, strictly speaking, it is separate, and the terms .convey a different meaning than that of the article or chapter itself. It may be considered as a part of the article for the, purpose of determining the meaning of the latter, and the headline itself may constitute a libel. Landon v. Watkins, 61 Minn. 137; Hayes v. Press Co., Ltd., 127 Pa. St. 642; Clement v. Lewis, 7 Moore, C. P. 200, 10 Price, 181; McAlester v. Detroit Free Press Co., 76 Mich. 336. But here the indictment charged the defendant with having published a libel in the form of a newspaper article, and that the State introduced in evidence only the headline of an article which the court held to be libelous per se- In ascertaining the meaning of the words spoken or written to determine whether or not they are libelous the entire conversation or writing must be considered (18 Am. & Eng. Ene. L. pp. 983, 984 and cases cited) ; and where the defendant • is accused of having published a newspaper article which is libelous on its face, it is not sufficient to prove only the headline or index to such article. Conceding that the court was correct in holding the words contained in the headline, when considered by themselves, to be libelous per se, yet the body of the article may have qualified or explained those words to the extent that it would have been a question for the jury to determine whether they amounted to a libel. The article itself was not introduced, nor did the defendant ask permission to introduce it, but the introduction of what purported to be merely a headline, index or synopsis presupposed that the article to which it related followed, and that, too, should have been introduced. The defendant was not bound to introduce the article. He had the right to insist on the State sustaining the allegations of the indictment by proof which conformed thereto. The proof must always conform to the allegation; and the State could not sustain an allegation of libel contained in a newspaper article by proof merely of language used in the headline which was libelous. Having alleged that the article was libelous, the State should have been required to prove it.
We do not mean to hold that the libel could not be contained in the headline to the article, nor that under this indictment the headline could not be introduced in the evidence as a part of the article. We do not say, either, that a statement printed in a newspaper in the form of a headline, but which in fact is disconnected from any article, and has no reference to any article, may not be described in the indictment as an article. But where it is what it purports to be, a headline or an index to the article which follows, then proof of its contents, without proof also of the article to which it relates, will not sustain an allegation of libelous matter in the article itself.
The justice of this view of the law becomes more apparent when we consider the defense which the defendant undertook under his .plea of justification, and which was practically denied him by the ruling of the court. He undertook to show by evidence that the prosecuting witness had offered to pay money to certain parties, Dyer and Hatley, by name, in consideration that they should make a statement as to the good character of said prosecuting witness, but the court held that such offer did not constitute 'the crime of bribery, and would not justify the defamatory statement. He also undertook to show that .the prosecuting witness had without authority signed .the name of Hatley to a certain written statement concerning his (witness’) good character; but the court held that the said writing was not such an instrument as could be the subject of the crime of forgery, and that such act would not justify the defamatory statement as to the prosecuting witness having committed forgery.
Now, if the newspaper article had been introduced in evidence, it might have qualified the headline, and shown that the defendant had .only stated that the prosecuting witness offered a bribe to Dyer and Hatley for the purpose named, and forged the name of Hatley to the instrument in question. In other words, that he had not accused the prosecuting witness of having technically committed the crime of bribery and forgery. In that event the charge could not have been libelous per se, and the defendant would have been entitled to have the question submitted to the jury to determine whether the words used were in fact libelous, and, if so, whether they were in fact false or true.
The count, therefore erred in admitting in evidence the headline to the article without the article itself. Reversed and remanded for a new trial.
Note by the Court. Chief Justice Hill was present when this case was considered, and concurs in the judgment of reversal on the grounds stated in the opinion. | [
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Hart, J.
Charlie Nichols prosecutes this appeal to reverse a judgment of conviction against him for grand larceny charged to have been committed ¡by stealing a cow from Ira McOown in Polk County, Ark.
The first assignment of error is that the court erred in allowing Jim Murray to testify that he and the defendant with others had tried to steal a yearling the night before tbe cow was stolen, but could not catch her. This assignment of error is not well taken.
On the part of the State it was shown that the defendant, Nichols, and Jim Murray belonged to a band organized for the purpose of stealing and committing other crimes and shielding each other from prosecution therefor. Under these circumstances the evidence was admissible for the purpose of showing a plan or scheme for stealing cows and other property and disposing of them. Murphy v. State, 130 Ark. 353.
The next assignment of error is that the court erred in giving instruction No. 3 at the request of the State. The instruction is as follows: “If you find from the testimony, beyond a reasonable doubt, that the defendant, Jim Murray, and others entered into a conspiracy to commit larceny and other crimes, and that in furtherance of such agreement or understanding, Jim Murray stole the McCown cow, you will convict the defendant, although you may further find that the defendant did not actually participate in the larceny.”
The defendant was indicted for stealing a cow. On the part of the State it was shown that the cow was first placed in the defendant’s lot, and that the defendant subsequently assisted Ms brother and Jim Murray in driving the cow out of the lot. The cow was driven out of the lot for the purpose of stealing her. She was carried to another place and killed and the meat divided between the defendant Nichols, Jim Murray and others.
• On the part of the defendant it was shown that he was not at home the day that' Ms brother and Murray placed the cow in his lot and did not know anytMng about it. He had nothing to do with stealing the cow or receiving a part of the meat after she was butchered. The defendant could not be convicted upon an indictment for larceny if he was not present aiding, abetting, and assisting in stealing the cow. He could not be convicted of the larceny of a cow by showing that he 'had entered into a conspiracy with other parties to commit larceny and other crimes, and that the other parties had stolen a cow in furtherance of such crime. If he was not present, aiding and assisting in the taking and carrying away the cow, the defendant was not guilty of larceny and could not be convicted of the crime because he had entered into a conspiracy previously to commit that and other crimes. Hughes v. State, 109 Ark. 403.
Therefore the court erred in giving the instruction complained of, and for that error the judgment must be reversed and the cause remanded for a new trial. | [
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Smith, J.
Ed S. Carl-Lee and wife executed to G. C. Griffith a warranty deed to a certain tract of land. This deed was later assailed and canceled, the suit for that purpose having been brought after the death of Carl-Lee, but notice of the pendency of the suit was given to his widow, who was his executrix. Later' the present suit was brought by Griffith against the estate of Carl-Lee to recover the price paid for the land with the interest thereon and the cost of the litigation, and there was a trial and verdict and judgment for the amount sued for, and this appeal is from that judgment.
We have before us no bill of exceptions preserving the evidence of the proceedings at the trial from which this appeal comes; but the insistence is that error appears upon the face of the record proper, in this, that the complaint does not allege that an affidavit was made showing the justness of the demand.
In the case of Davenport v. Davenport, 110 Ark. 222, we said: “It has been frequently decided by this court that in suits against estates, either by ordinary action or before the probate court, it is necessary to produce at the trial an affidavit of the justice of the claim.and of its nonpayment, made before the commencement of the action, or the claimant will be nonsuited. Hayden v. Hayden, 105 Ark. 97; Ryan v. Lenon, 7 Ark. 78; State Bank v. Walker, 14 Ark. 234. ” We there also said: ‘ ‘ The essential thing, the jurisdictional requirement, is the making of the affidavit, and a nonsuit must be suffered when it is not made within the proper time, and the statute prescribes its form. iBut it is held that a substantial compliance in the matter of the form of the affidavit is sufficient. Hayden v. Hayden, supra; Eddy v. Lloyd, 90 Ark. 340; Wilkerson v. Eads, 97 Ark. 296.”
The statute construed in those cases is section 106 C. & M. Digest, which reads as follows: “If the affidavit required for authenticating claims against deceased persons 'be not produced in an action' against an executor or administrator for debt against the deceased, the court shall, on motion, enter a judgment of nonsuit against the plaintiff; and the affidavit must appear to have been made prior to the commencement of the action.”
The making of the affidavit is said to be the essential thing; but the statute does not make it a condition precedent to the institution of the suit. It is not provided that suits shall not be brought unless an affidavit be made and presented to the administrator or executor. ‘Upon .the contrary, the provision of the statute is that, if the affidavit is not produced in an action against an executor or administrator, the court shall, on motion, enter a judgment of nonsuit against the plaintiffs. The making of the affidavit must be proved. It is evidentiary of the validity of the demand sued on — made so by statute — but it is part of the evidence in the case. The affidavit must be produced at the trial, but, not being made a condition precedent to the right to sue, a complaint is not fatally defective which fails to allege the making of the affidavit.
In the case of Wilkerson v. Eads, 97 Ark. 296, it was said: “The affidavit is a prerequisite to the right of action, but not an exhibition to the administrator, though, if not exhibited and the suit is not controverted, the claimant cannot recover costs.”
In the case of Ross v. Hine, 48 Ark. 304, it was. said: “The appellee sued an executor without first making the affidavit authenticating his claim against the. estate as required by statute. The executor moved to dismiss the action upon this ground. No affidavit was produced except the ordinary form of verification to the complaint, but neither this nor the allegations of the complaint conformed with any degree of substantiality to the statute authenticating claims against estates. Mansf. Dig., sec. 102. The statute is peremptory in its terms, directing a nonsuit if the authentication is not made, (Ib., sec. 107), and this court has universally given effect to it. Alter v. Kinsworthy, 30 Ark. 756, and cases cited.”
These cases, as well as others both earlier and later, recognize the affidavit as the basis of the suit. It must be produced at the trial if the suit is controverted, or if the existence of the affidavit is controverted, or a non-suit will be ordered.
But, in the absence of a bill of exceptions in this case, it will be conclusively presumed that the court found the fact to be that the essential affidavit had been made.
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McCulloch, C. J.
The plaintiff, Simon Yaffee, resides in tbe city of Fort Smith, and, while driving an automobile along one of the streets of the city, there was a collision between the automobile and a street-car operated by servants of the Fort Smith Light & Traction Company. The automobile was demolished in the collision, and plaintiff claims to have sustained serious personal injuries. There is a conflict in the testimony as to the extent of the injuries.
This is an action instituted to recover damages, it being alleged in the complaint that the collision was caused by negligence of defendant’s servants in the operation of the street-car.
The collision occured at the intersection of two streets, on one of which a street-car was being operated, and along the other the plaintiff was traveling in his automobile.
The acts of negligence set forth in the complaint are that the street-ear was operated at an unusual and dangerous rate of speed; that the servants of defendant operating the car failed to give warning, by bell or otherwise, of the approach of the street-car to the crossing, and that they failed to exercise ordinary care on approaching the crossing to discover the presence of travelers about to cross. It is further alleged that, if such care had been observed by the motorman, plaintiff’s presence at the crossing and on the track would have been discovered in time to avoid the collision.
All of the alleged acts of negligence are denied in the answer, and it is alleged that the collision occurred solely by reason of the negligence of plaintiff himself in attempting to cross the track while the street-car was at the crossing.
There was a trial of the issues, which resulted in a verdict in favor of the defendant.
The street-car track runs along Eleventh Street, and plaintiff attempted to cross at C Street. This is conceded to be a dangerous crossing on account of proximity of buildings to the line of the street, which obscure the view at the crossing.
Plaintiff was driving along the street with his family in the automobile, and he was doing the driving himself. The testimony of plaintiff himself and that of witnesses introduced by him tended to show that the street-car approached without signal of any kind and at a high and unusual rate of speed — twénty to thirty-five miles an hour; that plaintiff was driving his automobile at a speed of four or five miles an hour after having slowed down for the crossing; that, while he was crossing the car track, the street-car1 struck the automobile about midway of the hood'and demolished it, inflicting serious personal injury upon plaintiff, and that the street-car, after striking the automobile, ran about half a block before it was brought to a stop.
Plaintiff testified that as he approached the crossing he listened for an approaching street-car, but did not hear the noise of the car, and that it was too late to stop before driving across -the track.
The evidence adduced by the defendant tended to show that the street-car was running at a very moderate rate of speed as it approached the crossing; that the gong on the car was being continuously sounded, and that the street-car did not strike the automobile, but that, on the other hand, plaintiff ran his automobile against the side of the street-car as the car was crossing C Street. In other words, the testimony adduced by defendant tended to show that the collision was caused solely by the negligent act'-of the plaintiff in driving his automobile against the street-car as it passed the crossing. The inference also might have been drawn from the testimony that, even though the automobile was struck by the street-car, as claimed by plaintiff, the collision was caused by the negligent act of the plaintiff himself in attempting to cross immediately in front of the approaching street-car after he had discovered the approach of the car, or could haye discovered its approach by the exercise of ordinary care.
Among other instructions given at the request of the defendant, the following was given over the plaintiff’s objection:
“Though, you should believe from the evidence that the gong or other alarm was not given upon said streetcar at said crossing, still, if you believe that the plaintiff heard the approach of said car or saw said car approaching, or 'by the exercise of ordinary care for his own safety could have seen or heard said approaching car in time to have avoided the collision, then the court instructs you that the plaintiff was guilty of contributory negligence, defeating recovery herein, and your verdict should be for the defendant.”
This instruction was erroneous in telling the jury that if the plaintiff was aware of the approach of the street-car, or could, by the exercise of ordinary care, have discovered the approach of the car, he was guilty of contributory negligence and could not recover. This is not a correct statement of the law under the issues presented in this case.
The plaintiff and the defendant street-car company were both using the streets, with reciprocal obligations under the law to observe the rights of each other and to exercise ordinary care to obviate collisions. Pankey v. Little Rock Ry. & Elec. Co., 117 Ark. 337.
There was no absolute duty on the part of plaintiff, while traveling the street and approaching a crossing of the street-car track, to look and listen for the approach of cars, but the extent of his duty in that respect was an issue for the determination of the jury. Pankey v. Little Rock Ry. & Elec. Co., supra; Karnopp v. Fort Smith L. & T. Co. 119 Ark. 295; Pine Bluff Co. v. Webb, 139 Ark. 251.
The charges of negligence set forth in the complaint and involved in the testimony adduced are that the servants of the defendant not only failed to give warning of the approach of the car, but were operating the car at a dangerous rate of speed, and failed to exercise ordinary care to discover the presence of travelers at the crossing. There was a conflict in the testimony upon this issue, and it was not correct to say that merely because the plaintiff had failed to exercise care to discover the approach of the street-car he was barred from a recovery of damages, regardless of the negligent acts of the servants of defendant, and regardless of the distance of the car from the crossing when it could have been discovered by the plaintiff, and the speed of the car as it approached.
The jury might have found that, even though the plaintiff could, by the exercise of ordinary care, have discovered the approach of the car, under the circumstances he was not guilty of negligence in making the effort to cross ahead of the car, and that the collision was caused by the dangerous speed at which the car was being operated, and negligence on the part of the motorman in failing to discover plaintiff’s approach and to take proper steps to avoid a collision.
It was a question of fact for the jury to determine what constituted due care or negligence in attempting to cross as the car approached. This, of course, depended upon the distance of the car from the crossing at the time the traveler attempted to cross, and the speed at which the car was being operated at the time.
There is no charge in the complaint of peril actually discovered by the motorman, but there is a charge that the motorman failed to keep a look-out for the approach of travelers, and that the collision could have been prevented if proper care in that respect had been observed by the motorman.
In the Pankey case, supra, we condemned a similar instruction — at least similar in principle, where the court told the jury that, if the plaintiff in that case knew that the oar was approaching and undertook to cross the track in front of it, he assumed the risk and could not recover. In disposing of that feature of the case, we said:
“If the plaintiff’s own negligence contributed directly to his injury, then he cannot recover; but that was a cuestión for the jury, and it was improper to tell the jury that, 'because he attempted to cross in front of an approaching car, he assumed the risk or was guilty of contributory negligence. This instruction entirely ig nored the duty of the operatives of the street-car to exercise ordinary care to prevent injury to travelers, and only made the company liable for negligence after discovering their perilous position. It excluded from the jury all consideration of negligence in failing to sound the gong, or in failing to look for travelers on the track. In short, it excluded from the jury everything that would tend to place liability on the company except the fact of liability for discovered peril.”
In the present case the instruction even excluded liability for discovered peril, because it told the jury, in so many words, that if the plaintiff could, by the exercise of ordinary care, have discovered the approach of the car, he was not entitled to recover under any circumstances. ' " '
It is contended on the part of counsel for defendant that the defects in the instruction called for a specific objection, but we are of the opinion that the instruction was inherently erroneous, and a general objection to it was sufficient.
On account of the error in giving this instruction, the judgment is reversed, and the cause remanded for a new trial. | [
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Wood, J.
On the 15th of April, 1920, S. R. Swinney executed, to the Farmers' Bank & Trust Company (hereafter called bank) a chattel mortgage on crops to be grown on 200 acres of land in Mississippi County to secure the payment of a debt to the bank in the sum of $29,368.05, evidenced by promissory notes. Between the 8th of October, 1920, and the 13th of January, 1921, Swinney, without the knowledge and consent of the bank, shipped fifty-nine bales of cotton covered by the mortgage to Wilson-Ward Company (hereafter called' company), a cotton factor in Memphis, Tennessee. The company had no knowledge of the mortgage of the bank. It sold the cotton and out of the proceeds paid to Swinney the sum of $1,500 in cash, and, without any authority from Swinney to do so, applied the balance of $9,525 on his indebtedness to it, which amounted to more than $10,000.
This action was brought by the bank against the company to recover the sum of $11,025, the proceeds of the sale made by the company for Swinney. The company denied liability. By consent of parties the court sat as a jury to try the above issues and facts and rendered judgment in favor of the bank against the company in the sum of $9,525, from which judgment is this appeal.
The alleged conversion by the appellant took place in Tennessee, and the law of that State must govern. It is held by the Supreme Court of Tennessee that “when a chattel mortgage is executed in a foreign State where the property then is and where the mortgagor resides, and has been duly recorded in that State pursuant to its laws, and is valid under the laws of that State, the mortgagee, under the rule of comity between States, must be held to. have the better right upon the subsequent removal of the property to another State as against * * * an innocent purchaser from the mortgagor in such State into which the property has been so removed, although the mortgage is not recorded in the latter State. ’’ Newsum. v. Hoffman, 137 S. W. 490.
In the case of J. T. Hargason Co. v. Ball, 159 S. W. 221, the facts were that William Ball & Co. were cotton factors in the' city of Memphis, Tennessee. One W. H. Barnes purchased from the mortgagor seventy bales of cotton upon which J. T. Fargason Co. had a mortgage which had been duly recorded in Arkansas where the cotton was grown and the mortgagor and mortgagee resided. Barnes shipped the cotton to Ball & Co. in his own name. The cotton was received by the company in the usual way and sold in the regular course of business and the proceeds were paid over in good faith to Barnes —'all before Ball & Co. had any notice that Fargason & Co. had any interest in the cotton. The Supreme Court of Tennessee, upon the above facts, held that Ball & Co., the factors, were not liable. After approving the above doctrine of Newsum v. Hoffman, the court said: “The analogy would be complete if defendants were in possession of the property at the time complainant made demand therefor, or if they were in possession of its proceeds. On such a state of facts there is no doubt the complainant would have the right to recover. But the contest here is not over the property or its proceeds.”
In the case at the bar the contest is over' the proceeds of the sale of the cotton while in the hands of the appellant at the time the appellee instituted this action. It is true that the appellant had credited the account of its principal, Swinnev, with the balance of the proceeds after having paid him in cash the sum of $1,500, but this was done, as the testimony shows, without his consent or direction. The appellant advanced him on the sale only the sum of $1,500, and for that appellant is not held liable. The residue of the proceeds appellant appropriated to the. payment of Swinnev’s pre-existing indebtedness to it, and-; this appropriation, having been made without his con-j|, sent .or direction, it cannot be held that the appellant, as factor and agent, had settled with its principal, Swinney, and accounted to him for the entire proceeds of the sale before this action was instituted against it.
It occurs to us, therefore, that under the facts of this record the doctrine of Newsum v. Hoffman, and Fargason Co. v. Ball & Co., supra, entitles the appellee bank to recover- of appellant company the sum of $9,525, the proceeds of the sale of the cotton in its hands at the time this action was instituted. Until these proceeds had been turned over by the appellant to its principal, Swinney, they remained the property of Swinney upon which the appellee held a mortgage. The company had no lien on the proceeds of the sale in its hands to secure it in the payment of Swinney’s indebtedness to it.
Under the doctrine of the above cases, when the appellant, without the knowledge, consent, or direction of Swinney, passed the proceeds of the sale to the credit of his pre-existing indebtedness, it wrongfully converted the same to its own use and is liable therefor to the appellee. In addition to the above cases, see Words & Phrases, Vol. 1, second series, p. 1030; 11 C. J. 424; Merchants & Planters Bank v. Meyers, 56 Ark. 473.
The decree is in all things correct, and it is therefore affirmed. | [
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Smith, J.
This suit was brought to enforce the payment of certain delinquent levee taxes for the year 1920. A demurrer to the complaint filed for that purpose was overruled. Appellant, who was the defendant, declined to plead further, and a decree was entered ordering his lands sold, from which is this appeal.
It is first insisted, that the demurrer should have been sustained because of the failure of the levee district to comply with the provisions of act No. 531, Acts 1921, p. 573. This is an act entitled, “An act to. provide for the filing of a delinquent list of lands, town lots, railroads, and tramroads, in road and drainage districts, and for the collection of delinquent taxes thereon.” By the provisions of section 1 the act is made to apply to levee and fencing districts, as well as to road and drainage districts. Section 1 of the act provides that, if the taxes are not paid on or before April 10th of the year in which they are due, the collector shall, on or before the second Monday in June, make out and file with the clerk of the chancery court a list of the property returned delinquent, which he is required to verify.
Section 4 of the act provides that when those authorized by law to file suit for the collection of delinquent taxes desire to commence suit, “they shall obtain a certified copy of said list from the said clerk, which shall be filed with the complaint and taken as a part thereof.” A fee for the clerk is fixed for this service, which is to be taxed as costs. The insistence is that the complaint is demurrable because this list was not filed with the complaint and made a part thereof.
We do not agree with the counsel in this contention. Other sections of the act provide for a record of the lands so returned delinquent to be kept by the chancery clerk, and for their redemption from sale, and for a record to be made of the redemption when lands are redeemed. Any landowner may go to this record and ascertain if his lands were returned delinquent, and, if they are returned delinquent, may redeem them and have a record of this redemption then made.
Section fi of the act under which the taxes were levied provides that, if the board should fail to bring suit within sixty days after the taxes become delinquent, the right is given to the holder of any bond issued by the levee district to bring suit for the collection of such delinquent assessments.
This suit was 'begun June 7, 1921. The clerk of the chancery court is not required to record this delinquent list before the 1st day of July, which is, of course, more than sixty days after the date (April 10th) on which the taxes are required to be paid; and it is not to be presumed that the Legislature intended to impair the remedy given to enforce the collection of the bonds issued pursuant to the authority of the act creating the levee district.
The appellant does not deny that his lands are delinquent. The demurrer filed by appellant is a general one, and, as it does not specify the grounds of objection to the complaint, it must be regarded as objecting only that the complaint does not state facts sufficient to constitute a cause of action. Sec. 1190, C. & M. Digest.
We do not think the filing of this delinquent list by the collector and the furnishing of a copy thereof by the clerk is made a condition precedent to the right to sue; and, as it is not denied that the allegations of the complaint are otherwise sufficient to state a cause of action, the demurrer to the complaint was properly overruled.
The real question in this case relates to the sufficiency of the allegations of the answer to constitute a defense, as a demurrer was sustained to the answer.
Prom the pleadings it is shown that appellee, Long Prairie Levee District, was created by act No. 106, passed at the session of 1905; and by act No. 339, of the Acts of 1917,' additional powers were conferred upon the district. By virtue of the latter act the scheme of taxation was changed, and a bond issue of $500,000 was authorized to refund the outstanding bonds, and for raising and strengthening the levee.
The complaint alleges that, pursuant to these acts of 1905 and 1917, the levee district had issued bonds, and had. built a levee, and the board of assessors of said district had assessed benefits against all lands within the district accruing by reason of the protection given said lands against overflow from the waters of Red River, and appellant’s lands, among other,-were thus assessed.
The answer of appellant contains no denial of these allegations, hut its recitals are, in substance, as follows: appellant’s lands are so assessed that a benefit of $1.20 per year per acre is levied against his lands up to and including the year 1922, after which the assessment for levee purposes is increased to the sum of $1.60 per acre per year. That, pursuant to -the Alexander road law, appellant’s lands, with others lying within the levee district, were organized into a road district, and by a special act of the General Assembly passed in 1919 the burdens of the road district were increased. And at the special session of the General Assembly of 1920 an act was passed organizing a drainage district which included appellant’s lands here sued on and other lands lying within the levee district. That these three districts have issued, for their respective purposes, bonds which are liens on appellant’s lands and together amount to approximately $30 per acre on all of appellant’s lands; and that the effect of this action has been to confiscate the lands by destroying their value. It was alleged that in 1913 .the lands were worth $10 per acre, and that sum could have been obtained for them, whereas now appellant is unable to sell them at any price, as the total taxes for all three districts amount to $2.70 per acre per annum.
Appellant tendered with the answer a deed to his lands, leaving blank the name of the grantee, which he offered to supply by inserting the name of any one who would pay him $8 per acre for the lands.
It was alleged that the same persons had promoted all three of these districts, and the result of their action in so doing was to destroy the value of appellant’s property, in violation of the Constitution of the State and the Fourteenth Amendment of the Constitution of the United States.
There is no allegation that the legislation creating this district is unconstitutional. That question was set- tied by this court in. the case of Salmon v. Long Prairie Levee Dist., 100 Ark. 366, and Moore v. Long Prairie Levee Dist., 98 Ark. 113.
The constitutionality of the legislation conferring additional powers, rights and duties, is not questioned; nor is it contended that there was a failure to comply with any provision of the statutes as to the time and manner of. making the assessments which this suit seeks to enforce.
We cannot review, in this proceeding, the assessments for road and drainage purposes. Our concern is only with those assessments which this suit seeks to enforce, and, as we have said, no showing is made that these assessments were not levied in conformity with a valid statute affording appellant the opportunity to complain if he thought his lands were being improperly assessed. He has heretofore had his day in court for the purpose of questioning his assessments for levee purposes, and as his answer sets up no defense to the suit to enforce the payment of these assessments, the demurrer to his answer was properly sustained.
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McCuerocii, J.
This suit involves a tripartite controversy over the title to certain lands in Perry County, Arkansas.
Appellee, M. W. Gilkey, was formerly a resident of Perry County, and acquired title to the N. E. of S. W. ¿4 and N. W. of S. E. J4 sec. 36-4-21 — 80 acres — which we may hereafter refer to as the Gilkey tract. About the year 1890, while in possession of the land as a homestead, he left the country and left his wife in possession of the land; and she procured a divorce from him about 1899, intermarried with appellant, W. H. Kenady, on September 2, 1902, and died childless in June, 1903.
On May 9, 1891, the Gilkey land was sold under special execution in an attachment suit against Gilkey to one Z. J. Pierce, who, on October 22, 1891, entered into the following contract with Mrs. Gilkey concerning the same:
“This agreement, entered into this 22d day of October, 1891, by and between Z. J. Pierce and Mrs. A. M. Gilkey, witnesseth*. That, whereas the said Z. J. Pierce holds a certificate of purchase at sheriff’s sale to what is known as the M. W. Gilkev farm in Perry County, Arkansas, now in possession of the said A. M. Gilkey. Now, in consideration of the receipt of one half of the rent of said farm until the sum of $225 has been collected by him without interest, the said Z. J. Pierce agrees, when said sum has been received by him, to execute to the said Annie M. Gilkey a quitclaim deed to said farm. . It is further agreed that the division of the rent, as above stated, is to commence with the year 1891, and to continue until the said sum of $225 has been paid to Z. J. Pierce as above stated, and no further proceeding taken under said certificate of purchase unless this agreement is broken by said A. M. Gilkey.”
On January 19, 1897, Pierce executed to Mrs. Gilkey a deed purporting to convey the land to her.
Mrs. Gilkey owned another tract, containing 80 acres, which is known as the Bates tract.
After the intermarriage of Mrs. Gilkey with appellant, and her death, Gilkey commenced an action at law against appellant to recover possession of the Gilkey tract; and J. C. Harkness and other collateral heirs of appellant’s wife commenced a similar action against him to recover the Bates tract.
Appellant filed his answer in each case, claiming title to all of said lands under a deed of conveyance alleged to have been executed to him by his wife, Annie M. (Gilkey) on September 4, 1902, which said deed, he alleged, had been lost or destroyed, and had not been recorded. In his answer in the Gilkey case he also pleaded that he and his grantor had been in actual, adverse possession of the land more than seven years next before the commencement of the action.
By consent of all parties the two actions were consolidated and transferred to the chancery court. Appellant then filed an amendment to his answer, making it a cross-complaint, asking that the alleged deed executed to him by his wife be reformed so as to correct the imperfect description therein of the land conveyed.
The court rendered a final decree in favor of Gilkey for the Gilkey tract, and in favor of appellant for the Bates tract. Kenady and the plaintiffs in the Harkness suit appealed to this court.
We are of the opinion that the decree was correct in award ing the Gilkey tract to appellee Gilkey. In the first place, no title passed to Pierce under the attachment sale, for the reason that the sale was never confirmed by the court which ordered it in the action against Gilkey. The judgment was rendered upon constructive service, an order of attachment was levied on the land, and the court ordered it sold to satisfy the debt, as provided by statute. The sale was made subject to confirmation, and title did not pass until the sale was confirmed by the court. Kirby’s Digest, § 385; Freeman v. Watkins, 52 Ark. 446.
In the next place, the right of redemption existed for a period of one year after the sale. Beard v. Wilson, 52 Ark. 290. No deed was ever executed pursuant to the sale. The contract between Pierce and Mrs. Gilkey was entered into within that period, and was in effect only an agreement for redemption. The redemption money was paid out of the rents and profits of the land, and Mrs. Gilkey could not, by that means, acquire title to the land against her husband. It was her husband’s homestead, and she remained in possession, which she had the legal right to do, and used the rents and profits in removing the incumbrance. Nor did the statute of limitation run in her favor, at least until she obtained a divorce. Until then her husband had no cause of action for recovery of the land.
Counsel for appellant contend that he should at least be subrogated to the lien of the judgment creditor on the land. They assert this right under the doctrine laid down in Spurlock v. Spurlock, 80 Ark. 37. In that case the right of subrogation was given because the earnings of the wife were used in discharge of a mortgage lien created by the husband on the homestead. That doctrine has no application here, because the money used in removing the incumbrance arose, not from the earnings of the wife or from her separate estate, but from the rents and profits of the homestead.
As to the Bates tract, we think that the chancellor reached the wrong conclusion from the evidence. The testimony is, in our opinion, insufficient to justify a finding that a deed was executed and- delivered to appellant Kenady by his wife. He alleged that his wife did execute and deliver such a deed to him, and that it had been destroyed. It devolved upon him to prove all these facts by clear and satisfactory evidence. Nunn v. Lynch, 73 Ark. 20; Elyton v. Denny, 108 Ala. 323.
The relationship between the parties to the deed, that of husband and wife, and the death of the grantor call with special force for the application of that rule, for such conveyances are viewed with some suspicion.
The only testimony in the case of a delivery of the deed is that of Kenady himself; and if his testimony was competent for that purpose (which we need not decide), it is far from satisfactory. He testified that when he obtained his license to marry Mrs. Gilkey he also procured a blank form of deed for her to convey the land to him, and that she executed and delivered the deed two days later. Yet it is shown by the testimony of another witness, who is entirely disinterested, that a month later both of them went to an attorney and procured the preparation of another deed for the same land which she never executed, and the same was found unexecuted after her death. The attorney testified that Mrs. Kenady stated to him in the presence of Kenady that the deed claimed to have been previously executed (and which he says then lacked the signature either of the grantor or the officer before whom it was to be acknowledged) was not satisfactory, and that she wanted to reserve the timber on the land. He testified also that Mrs. Kenady said to her husband after the deed had been prepared and handed to them, “I am going to keep these papers” (referring to the previously prepared deed and the one just handed to them), and that he replied, “Yes, that is our agreement.” Now, this occurred after Kenady claims that tin* deed had been delivered to him, and is inconsistent with a previous consummated conveyance of the land. This testimony shows clearly that at that time neither of the parties understood that the title to the land had been vested in Kenady. He does not clmm that a delivery of the deed was made to him after that time. He claims -that the deed, after delivery, was kept in a wardrobe to which he and his wife both had access, and remained there until the death of his wife. No one ever saw it after the death of Mrs. Kenady, and its disappearance is not accounted for except by a surmise of Kenady, unsupported by evidence, that it was abstracted from the wardrobe by one of the collateral heirs and destroyed. Mrs. Kenady died in possession of the land, and the testimony is far too unsatisfactory to justify us in declaring that the title had been divested under a lost unrecorded deed.
That part of the decree in favor of appellee M. W. Gilkey for the land known as the Gilkey tract is, therefore, affirmed; and that part of it in favor of W. Iff. Kenady for the Bates tract is reversed and remanded with directions to enter a decree for that tract in favor of the collateral heirs of Mrs. Kenady. | [
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Wood, J.,
(aifter stating the facts.) The appellant abstracts the pleadings in the case, but fails to abstract the evidence. Only the testimony of two witnesses (both for appellant) is abstracted, while the testimony of appellee, plaintiff below, upon which the verdict and judgment- were rendered, is not abstracted at all. None of the instructions were abstracted, although it is shown by a statement in appellant’s brief (“the court in its ninth instruction said”) that at least nine instructions were given. . Appellant complains of the refusal of the court to give its third request for instruction, but does not abstract the instruction, or even state its substance.. Appellant says “that the thirty-two hours shown by the proof, being the time the goods were deposited in the depot, .were ample time for the consignee to call for the goods.” But only the testimony of a witness for appellant tending to show the time that the goods were deposited in the warehouse of appellant is abstracted. What the testimony of the witnesses for appellee may have been with reference to that matter we can not know without looking to the record. There is no abstract of the instructions and the testimony in the cause, and, under jrecent decisions oí this court, the judgment must be affirmed. Shorter University v. Franklin, 75 Ark. 571; Beavers v. Security Mutual Insurance Co., 76 Ark. 138; Merritt v. Wallace, 76 Ark. 217; Carpenter v. Hammer, 75 Ark. 347; Koch v. Kimberling, 55 Ark. 547; Houghton v. Moseley, 80 Ark. 259.
But, if we should let that pass, still the judgment would have to be affirmed.
The bill of exceptions has no statement showing that it contains all the evidence that was introduced at the trial. 'In fact, there are statements in the bill of exceptions which show that it does not contain all the evidence. It must be presumed in such case that the jury was correctly instructed, and that there was evidence to sustain the verdict. Western Coal & Mining Co. v. Jones, 75 Ark. 76, 83; Hardie v. Bissell, 80 Ark. 74; Kansas City, F. S. & M. Rd. Co. v. Joslin, 74 Ark. 553, and cases cited therein; Railway Company v. Amos, 54 Ark. 159. | [
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Riddick, J.,
(after stating the facts.) The only question presented by this appeal is whether the statute by virtue of which the appellant was suspended from the office of county judge pending the trial of an indictment against him for nonfeasance in office is a valid law or not. The language of the act is as follows:
“Whenever any presentment or indictment shall be filed in any circuit court of this State against any county or township officer for incompetency, corruption, gross immorality, criminal conduct amounting to a felony, malfeasance, misfeasance or nonfeasance in office, such circuit court shall immediately order that such officer be suspended from his' office until such presentment or indictment shall be tried. Provided, such suspension shall not extend beyond the next term after the same shall be filed in such circuit court, unless the cause be continued on the application of the defendant.” Kirby’s Digest, § 7992.
The' act further provides that, upon conviction for any such offenses, a part of the sentence of the court shall 'be removal from office. It also provides for a temporary appointment of an officer to discharge the duties of the office during the suspension and for an appointment to fill the vacancy if upon conviction the officer so suspended is removed from office. It will be noticed that the statute does not authorize a removal from office upon the filing of the indictment, but only a suspension until the indictment can be tried, and to guard against unwarranted delay it provides that the suspension shall not extend beyond the next term of the. court unless the case be continued on the application of the defendant. There is a distinction between a suspension and a removal from office. In the case of suspension the defendant still remains an officer, and there is no vacancy, but as a matter of public policy he is prevented from exercising the duties of the office while an indictment is pending against him.
The statute makes no reference to the salary of the officer pending his suspension. It may follow that, by virtue of the suspension, he loses the salary during the period of suspension. But that matter is not before us. The question here is, has the Legislature the power as a matter of public policy to provide that a county officer indicted for misfeasance, malfeasance, or nonfeasance in office shall be suspended and not allowed to discharge the duties of the office during the pendency of the indictment.
In a recent work it is said that: “It is well settled in the United States that an office is not the property of the office holder, but is a public trust or agency; that it is not -held by contract or grant; that the officer has no vested right therein; and that, subject to constitutional restrictions, the office may be vacated or abolished, the duties thereof changed, and the term and compensation increased or diminished.” 23 Am. & Eng. Enc. Law, 328.
This statement of the law is supported by numerous decisions, and is undoubtedly correct. It follows that, unless restricted by the Constitution, the Legislature has the right to declare that no county judge shall serve as such while an indictment is pending against 'him for malfeasance or nonfeasance in office.
To sustain the contention that this law is invalid, we are pointed to only two provisions of the Constitution.
It is said that the Constitution provides that “no person shall be deprived of life, liberty or property without due process of law.” Art. 2, § 8. And again that it provides that “no.person shall be taken or imprisoned or disseized of ‘his estate, freehold, liberties or privileges or * * * deprived of his life, liberty or property except by the judgment of his peers or the law of the land.” Art. 2, § 21.
In reference to the provision in section 21 of art. 2, last quoted, it is only necessary to say that it does not limit the power of the Legislature to pass laws, but forbids that any one shall be deprived of his rights, liberty, privileges or property, etc., except in accordance with the law. As the suspension in this case was based on a statute regularly passed, that section does not apply until it be shown that this law is invalid. As to the other quotation from section 8 of art. 2, which provides that no person shall be deprived of life, liberty or property without due process of law, it is evident that this defendant has been deprived neither of his life nor liberty, and this provision does not apply .unless we can say that an office comes within the meaning of the word “property,” of which the Constitution says no person shall be deprived without due process of law.
But we have just said that an office is not the property of the office holder. This question has often been considered by the courts, and is too well settled to require much discussion. In the recent case of Taylor v. Beckham, 178 U. S. 548, Chief Justice Fuller, referring to this question, said that “the decisions are numerous to the effect that public offices are mere agencies or trusts, and not property as such. Nor are the salary and emoluments secured by a contract but compensation for services act•ments secured by a contract, but compensation for services actually rendered.” “In short, generally speaking,” he says, “the nature of the relation of a public officer to the public is inconsistent with either a property or a contract right.” In his dissenting opinion in that case Mr Justice Brewer said: “Aside from these adjudications, I am clear, as a matter of principle, that an office to which a salary is attached is, as between two contestants for the office, to be considered a matter of property. I agree fully with those decisions which are referred to, and which hold that, as between the State and the office holder, there is no contract right either as to the term of office or the amount of salary, and that the Legislature may, if not restrained by constitutional provisions, abolish the office and reduce the salary. But' when the office is not disturbed, when the salary is not changed, and when, under the Constitution of the State, neither can be, and when the question is simply whether one shall be deprived of that office and its salary, and both given to another, a very different question is presented, and in such a case to hold that the incumbent has no property in the office, with its accompanying salary, does not commend itself to my judgment.”
Counsel for appellant quotes this language as supporting his contention that in this case the office must be treated as property. Rut we do not think so. The learned judge in this extract says that as between two contestants therefor an office to which a salary is attached is to be considered a matter of property, when the question “is simply whether one shall be deprived of that office and its salary and both given to another.” But that is not the case here, for this is not a contest between two claimants to the same office. It is a contest between the State and the office holder. In such a case, to repeat the words of Judge Brewer quoted above, “there is no contract right either as to the term of office or the amount of salary, and * * * the Legislature may, if not restrained, by constitutional provisions, abolish the office and reduce the salary.” If it may do that, it certainly may provide for a temporary suspension of the officer and his salary during the time an indictment is pending against him. This is done, not as a punishment, but because, as a matter of public policy, it was deemed safer for the public interests that an officer charged by a grand jury of his county with having been guilty of such crimes should not be permitted to continue to exercise the functions of his office until tried and acquitted.
This same conclusion was reached by this court in the case of Allen v. State, 32 Ark. 242, where Chief Justice English, delivering the opinion of the court, said that the.same objection that is made to this act “might be urged to all statutes which provide for arresting men accused "of crimes and depriving them of liberty before trial and conviction. Persons charged with crimes are often denied bail or unable to give it when allowed, and are imprisoned before trial and conviction. Public policy requires this to be done for' the due enforcement of penal laws.”
Counsel for appellant says that the requirement that an indicted person give bail and the requirement that an indicted officer shall be suspended from office are not analogous. It is true that there is a difference, but both laws rest on public policy. The law permits the court to refuse bail and to keep confined persons charged with a capital case where the proof is plain. It requires the court to suspend a county officer indicted for malfeasance in office. It may result that an innocent man may be confined in jail or an official without fault be suspended from office. In neither case is a punishment intended, but imprisonment in one case and suspension in the other is inflicted because the wisdom of the Legislature deemed that the interests of the public required it.
The offense charged in this case was a mild one, and it' may be that the defendant had a valid excuse for his_c°nduct- But, as we see it, the law required the court to order the suspension. Being of the opinion that the law is valid, the judgment is affirmed. | [
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Hill, C. J.
Appellee, Baltimore, bought of appellant medicine company a bill of its goods, and signed written order there for. Following various items of medicine, appears this: “Full line of advertising matter.” On face of the order was this also: “Paste label on back of this order.” On the back was a list and description of signs and posters and other articles, such as: “Bell Watch Fobs,” “Bell Stick Pins,” “B. M. Bells,” “Sgns. P. F. H.” “Some Tacks,” various books, as “50 Good Eagle Books,” etc. In explanation of these matters, and certainly the writings are-not self-explanatory, Baltimore testified that the watch fobs and stick pins were premiums, and with the signs and advertising matter were an inducing cause for the order. Some calamity befell these articles, and Baltimore did not receive the medicines, nor the stick pins, nor watch fobs,, nor anything ordered. The medicine company proved that it accepted the order and directed the advertising matter and the medicines to be shipped to Baltimore, and that it delivered to the railroad company for shipment to Baltimore a box properly directed containing the medicines ordered. But it failed to prove the shipment of the advertising matter. In fact, the only inference to be drawn from the testimony is that it was not sent. Evidently the box of medicines was lost in transit, and the question is upon whom the loss shall fall. If the medicine company complied with its contract and delivered the goods ordered to the carrier for Baltimore, then the loss is his; if it did not comply with the contract, it can not require him to pay for -the goods. The contract can not be considered several, and binding to the extent it was fulfilled, as in Duffie v. Pratt, 76 Ark. 74. The advertising matter, if of any importance at all, from its very nature touched the whole order, and may have been an inducing cause to the contract. Templeton v. Equitable Mfg. Co., 79 Ark. 456. Even if the evidence that it was an inducing clause be not competent, and be disregarded, the court can not treat the failure to send these premiums and advertising matter as -a matter of no moment to the purchaser. It is very probable that a country merchant would more readily purchase goods when a full line of advertising matter of those goods was furnished him to go with the goods. In this-case the signs and -posters, presenting the virtues and cures of “Tar Honey” and “Anti-pain”, and stick pins and watch fobs and “Household Help Books” as lagniappe for “Eagle Eye Salve” and the “Tonic”, may have been, and doubtless were, important factors.
The court was not without evidence in finding that the contract had not been complied with. 1
Affirmed. | [
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Wood, J.
(after stating the facts.) The questions in the case, as stated by the learned, counsel for appellants, are:
“First: Did J. F. Hudspeth give the appellant, Sallie Davenport, the land .in controversy ? Second, did he place her in possession of said land under a valid gift? Third, if she went into possession of said land under a valid gift, did she hold the same continuously and under claim of ownership under said gift for a period of seven years?”
It would doubtless be interesting to the parties litigant for the court to discuss in detail the evidence bearing upon these questions. But the record is voluminous, and the determination of these issues depends mainly upon questions of fact upon which the evidence in the record is conflicting. It will serve no useful purpose as a precedent to discuss pure questions of fact as they are presented in this case, and therefore we refrain from doing so. This is one of those unfortunate controversies between brother and sister which the courts are sometimes called upon to settle. Witnesses are adduced on each side whose testimony tends to support the respective contentions, but, the chancellor having found in favor of appellee, we think it is a case in which bis' finding should be very persuasive. It may be said in this case as was said by us in Meigs v. Morris, 63 Ark. 100: “To justify a decree in favor of appellants, the proof should be sufficient to have warranted a decree for specific performance against J. F. Hudspeth, had he lived and retained the title.” The proof should be sufficient to warrant the reformation of the deed of J. F. Hudspeth to Sallie Davenport, so as to make it include the land in controversy.
Appellee relies upon a deed from his ancestor which embraces the land in controversy. Appellants claim, that this occurred through a mistake of the draftsman who was instructed to draw a deed containing other lands, and by mistake included the tract in controversy 'as •well. In McGuigan v. Gaines, 71 Ark. 614, this court approved the following language by Bishop-on Contracts, § 708. The author says: “In no case will the court decree an alteration in the terms of a duly executed written contract, unless the proofs are full, clear and decisive. Mere preponderance of evidence is not enough. The mistake must appear beyond reasonable controversy.’’ Again the court said in Goerke v. Rodgers, 75 Ark. 72: “It is to avoid such honest misunderstanding, as well as to prevent advantage by unscrupulous parties, that the law requires -that the evidence to overcome the written memorial must be clear, unequivocal and decisive.’’ See also Tillar v. Wilson, 79 Ark. 256, and Foster v. Beidler, 79 Ark. 418.
We are convinced from a careful consideration of the evidence in this record that the chancellor had in mind the above, principles, and correctly applied them by finding and decreeing in favor of appellee.
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McCulloch, J.
The plaintiff, J. N. Montgomery, instituted this action to recover of the defendant, the Capital Fire Insurance Company, the sum of $575 and interest thereon upon á fire insurance policy issued to him by the defendant on his dwelling house and furniture. The complaint contained the necessary averments as to ownership- of the property and its destruction by fire, the issuance of the policy and the furnishing of the proof of loss, and contained the further allegation that the defendant’s agent had, by fraud, deceit and duress practiced upon him, obtained from him the policy after the fire and kept it.
The defendant in its answer pleaded breach of warranty by plaintiff agains-t incumbrances on the property insured; and also pleaded a written release of liability alleged to have been executed by the plaintiff in consideration of the sum of twenty-five dollars paid to him as a compromise and the further Sum of $11.15, un" earned premium paid to him. The answer also contained a denial of the plaintiff’s allegations of fraud and duress in obtaining possession of the policy.
A trial before a jury resulted in a verdict in favor of the plaintiff for $575, and the defendant appealed.
The defendant asked the court for a peremptory instruction in its favor, which was refused, and exceptions were saved. There were no other requests for instructions, and the instructions given by the court have not been preserved in the record. We must therefore indulge the presumption that the jury was properly instructed.
The only errors assigned in the motion for new trial are that the court permitted the plaintiff to testify concerning his oral statements to defendant’s agent who prepared and forwarded the application for insurance about a mortgage on the property, and the refusal of the court to give the peremptory instruction asked.
The plaintiff was an illiterate man, and testified that when the application was written by the agent through whom he obtained the policy he informed said agent of the mortgage on the property. This testimony was admissible, and it was not disputed. It operated as a waiver of the warranty that the title to the property insured was unincumbered. Insurance Co. v. Brodie, 52 Ark. 15; State Mutual Ins. Co. v. Latourette, 71 Ark. 242; Franklin Life Ins. Co. v. Galligan, 71 Ark. 295; German-American Ins. Co. v. Harper, 75 Ark. 98; People’s Fire Ins. Assoc. v. Goyne, 79 Ark. 315; Security Mutual Ins. Co. v. Woodson, 79 Ark. 266.
Counsel argues that the evidence is insufficient to establish the agency of Woods, the person to whom the information was given. We cannot agree with him in this contention. Woods wrote the application, and appellee stated in his testimony that Woods was the agent of the company, and that he obtained the policy through him. Another witness, Hatch, who was present when the application was prepared, testified that Woods prepared it, and that he was the agent of the company. Neither of these witnesses were asked as to their means of knowledge concerning the agency of Woods, nor did appellant offer any evidence controverting these statements or showing the limits of Woods’s authority as agent. We think there was sufficient to warrant the jury in finding that Woods was the agent of the company with authority to bind it. His authority to receive and forward the application was sufficient to bind the company to any information imparted to him in thé course of the employ ment. Franklin Life Ins. Co. v. Galligan, 71 Ark. 395; People’s Fire Ins. Co. v. Goyne, supra; Mutual Reserve Fund Life Assn. v. Cotter, ante p. 205.
Nor could the company,.by stipulation in the application or policy, escape responsibility for the act of its agent in waiving the falsity of the answer to questions in the applicaton. People’s Fire Ins. Co. v. Goyne, supra.
The testimony of the plaintiff shows .that he is not only illiterate, but that he is a very ignorant man. He states that, after the destruction of the property by fire, the adjuster of the company and another agent came to his home in the country, and told him that he “was in United States trouble and had better settle;” that they induced him to go with them to the ■town of Beebe, led him to the hotel, one of them on each side of him holding him by the arm, and then kept him over , night in a room with Woods, the agent, and that they induced him to surrender .the policy. It is - true that he does not testify as to any positive threat or act of violence offered; but, according to the undisputed evidence, the company was liable to him for the loss, and we cannot say that the jury was without warrant in finding that the surrender of the policy and the release of liability thereunder was not fairly obtained from him. As already stated, we must presume that the jury were properly instructed as to the law on this point, and there was sufficient evidence to support the finding.
Appellant was entitled to credit on the amount of liability under the policy for the sum paid to him. We assume that the court instructed the jury to that effect. The jury returned a verdict for the amount of the loss, without interest. The interest up to the date of the verdict was sufficient to cover the amount of the payments, and we assume that the jury allowed the credits in that way.
There is no error in the proceedings, and the judgment must be affirmed. It is so ordered. | [
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Battle, J.
Frank Tuxworth filed a complaint against Du- rand Whipple, in the Pulaski Chancery Court, on the 13th day of September, 1904. • He alleged in his complaint that he was the owner of lot No. 14 in block No. 17 in Fleming & Bradford’s Addition, in the city of Little Rock; that it is vacant and unimproved; that he was a non-resident of this State; that suit was brought in the Pulaski Chancery Court in July, 1902, by the alleged Improvement District No. 60 against the unknown owners of the lot for assessment charges against the same for the years 1899, 1900 and 1901, amounting in the aggregate to $y.72; that plaintiff was not served with process, and had no knowledge of the suit until April, 1904; that there was no Improvement District No. 60, but attorneys for the so-called district falsely represented to the court that there was such a district, and that the assessments were due, and on these representations the court, on the first of October, 1902, rendered a decree, ordering the lot to be sold; that the suit in which this decree was rendered was numbered 7752; that on the 3d day of November, 1902, the lot was sold by a commissioner of the court to the defendant for the assessments and costs; that on the 15th day of January, 1904, the commissioner executed a deed to the defendant. He asked that the decree, sale, and deed be set aside and declared void.
Afterwards plaintiff filed an amendment to his complaint in which he stated there was no such district as Improvement District No. 60; .that ten resident owners of property within the boundaries of the alleged district never signed a petition to the city council of Little Rock to take steps towards making the improvement district according to section 5665 of Kirby’s Digest, and the city council had no jurisdiction to pass an ordinance establishing such district. That the ordinance, the acts of the persons named as commissioners, and the assessments were void and of no effect. That the decree rendered by the court was void for four reasons:
“(1). There was no such plaintiff in existence' as Improvement District No. 60 at the time of the commencement of said cause No. 7752; that, there being no plaintiff, there was no cause of action before the court to be adjudged, and that the complaint filed in said cause was not a pleading in any cause in said court for adjudication; and the court had no power to take any steps to adjudicate such cause.
“(2). The court had no jurisdiction over the subject-matter of said complaint for the reason said lot was not situated within any improvement district; that the court by law had authority only to decree sale of land situated within an improvement district to satisfy assessments for improvement of property.
“(3)- That plaintiff was not a party to said cause No 7752, and had no notice of said cause or pretended decree until April, 1904; that the allegations that the owner of said property was unknown were untrue; that the parties pretending to be commissioners had notice of facts from which they could easily have found plaintiff was the owner.
“(4). That the decree and sale of said lot without jurisdiction in the court to render the same in cause No. 7752 deprived plaintiff of the property without due process of law, contrary to the Fourteenth Amendment to the Constitution of the United States, and the decree and sale are therefore void.”
The defendant answered, and stated that the plaintiff did not pay the assessments on the lot in controversy for the years 1899, 1900 and 1901; and that Improvement District No. 60 has always -been a de facto improvement district from the date of its organization in May, 1892, and that it was recognized by the plaintiff and predecessors in title by the repeated payment from year to year of assessments levied on said lot by the board of improvement of said district; that in the case of the board of improvement of said district against the unknown owners of lot 12, 13 and 14, block 8, in said district, this court rendered a decree on December 26, 1893, sustaining the legality of the organization' of said district, although in that case its legality was vigorously contested; that since said adjudication some three hundred suits have been brought in this court (chancery) by said board of improvement of said district against delinquent owners of lots in said district, and successfully maintained; that a large amount has been expended by said board in said district. in improving the streets and building bridges therein ; that the allegations made in said complaint in suit No. 7752 were neither false nor fraudulent, and defendant alleges that the statements therein made are true; that said lot 14, block 17, in said Fleming & Bradford’s Addition in said district was delinquent for the assessments for the years 1899, 1900 and 1901, for the amounts set forth in said complaint, and that the said lot is within the boundaries of said district; that the statements made in said complaint to the effect that no notice was served upon the unknown owners of said lot in said suit are untrue; that the said owners were duly and fully notified as required by law, in every particular, of the bringing of said suit; that the process was regular, and that the said complaint contained the averment that the owners of said lot were unknown, as required by section 5346 of the Digest; that the summons was duly posted on the lot, and was duly published in the proper newspaper, for the proper period; that the proper proof was duly made and filed in said court, showing the same; that the attorneys for the said board in said suit did not make any false representations to the court, as alleged in said complaint. Defendant admits the bringing of the suit in said case, numbered 7752, the decree therein, the advertisement, and the sale by the commissioners of this court (chancery), and the execution of the deed to defendant as alleged in said complaint. Defendant alleges that full proof was duly made to the court of all the steps required for constructive service in said case,' as required by law, as is shown by the records and files of the court; that it was the duty of said plaintiff, as a provident owner, to have known of all these steps in said suit, especially since many assessments had previously been made upon said lot, and paid from year to year, either by the plaintiff or by some one acting in his behalf, from which it folloivs that he was charged with notice that the annual assessments would probably continue; that it is not true that when defendant purchased said lot he knew that said district had no legal existence, and that the said decree was void; that said decree is valid and binding, and said deed is a legal and valid deed.” •
The defendant also answered the amendment to the complaint, and alleged that the improvement district in question was a de facto district, and the board of improvement a de facto board, at the time of the rendition of the decree; that the lot involved was within the territorial boundaries of the district, which was known as “Street Grading District No. 60,” of the city, of Little Rock; that all persons interested in the lot were parties to the -suit, it being in rem; that the plaintiff had constructive notice of the bringing of the suit; and that the allegation in the complaint in suit numbered 7752 that the owners of the lot were unknown was true in fact, as neither the complainants nor their agents or 'attorneys had any knowledge as to who the owners were at the time the decree was rendered, and had no available means of knowing who they were.
The cause was heard, in part, on the following agreed statement of facts:
“First. That the plaintiff holds title to the lot claimed in this case by him by and through the title as set forth in the complaint, except as the same may be affected by deed therein mentioned as held by the defendant.
“Second. That all exhibits to plaintiff’s complaint are true copies of the records, and are admitted as evidence if properly certified to by the proper officer.
“Third. That plaintiff was a nonresident when said suit 7752, mentioned in plaintiff’s complaint, was brought, and has been ever since, and is now, a non-resident of this State.
“Fourth. That plaintiff was never personally served with notice of said suit No. 7752, and never entered his appearance therein, and that the only notice given of said suit was such a notice is shown by the papers therein, with returns thereon, which are admitted in evidence in this case.
“Fifth. That the plaintiff had no personal knowledge that suit No. 7752 had been brought, or that the lot claimed by him had -been sold under the decree in said case, or' that the defendant had purchased the same until April, 1904, after the terms of this court (chancery) at which said decree was rendered, said sale made and said deed executed to defendant had expired.
“Sixth. That said suit No. 7752- was a suit against the unknown owner of certain lots, including the lot claimed by plaintiff, and that plaintiff had- no personal notice of any kind of said suit until April, 1904.
“Seventh. That the decree in said suit No. 7752, under which the lot claimed by plaintiff was sold to defendant, was taken without the introduction of proof except as to such service as is shown by the papers with the returns thereon, ■ and the complaint and other papers in said case; and that there was no issue joined and tried in said case as to whether or not there was such a thing as Improvement District No. 60, or as to whether or not there were any faxes, assessments or penalties due to said district on the lot claimed by plaintiff; that the. decree in said case was a default decree given on the complaint therein and such service as is shown by the papers therein.
“Eighth. That plaintiff has regularly paid all taxes due on said lot claimed by him since he has owned the same, except that claimed by said alleged Improvement District No. 60.
“Ninth. That it is admitted that no petition signed by ten resident owners of real property within the territory embraced in said alleged Improvement District No. 60 was ever presented to the city council of Tittle Rock, Arkansas, asking that said district -. be established, as required by section 5322 of Sandels & Hill’s Digest, and that said District No. 60 was never legally created. ■
íjc í|í j]c ;jc sfc ^ “Eleventh. That when the lot claimed by plaintiff was sold under decree in case No. 7752, the defendant purchased it and said lots 12 and 13, in the same block, for $28.12, and that each of said lots was worth at the time he purchased same, and is now worth, $400.
* * ‡ * * * * * * . “Fourteenth. That the plaintiff would testify that he did not know that there was claimed to be such a thing as said alleged Improvement District No. 60 until April, 1904, and that he never knowingly paid any taxes or assessments to said district on lot 14, and the same is admitted as the evidence of plaintiff in this case, as if properly taken and filed herein to that effect; but it is admitted -that the assessments on said' lot claimed by1- said alleged Improvement District No. 60, prior to those for the year 1899, were paid by some one.
“Fifteenth. It is also further agreed that said suit No. 7752 - was brought for assessments claimed to be due on said lot to said improvement district and unpaid; that the decree therein was rendered upon default of any answer or demurrer, and the said lot was sold in the usual manner to the defendant by the commissioner appointed by this court therefor, and was sold after due advertisement, at the time and place described -therein, at public sale to the highest bidder for cash; and that the defendant paid the purchase money therefor to said commissioner in cash, and a certificate of sale therefor was executed and delivered b}' said commissioner to this defendant in the usual manner as directed by statute; and that at the expiration of the period of redemption from sale of one year, no redemption having been made from said sale, the said commissioner executed and delivered to this defendant a deed to said lot, in pursuance of said decree, and as ordered by the said court; and that said decree has never been appealed from, reversed, set aside or modified, and has whatever force and effect it had when first rendered.
“Sixteenth. It is also agreed that what was supposed to be Improvement District No. 60 collected assessments on property therein from May, 1892, until the decision of the case of Board of Improvement District No. 60 v. Cotter, 71 Ark. 556, and that those in charge of same, from time to time during said time, expended considerable sums of money in improving the streets and erecting bridges over a creek within the territory embraced by said alleged district. It is also agreed that during said time there were several suits in this court (chancery), including one in which the legality of said district was directly attacked and involved, in which this court (chancery) held the organization of said district to be legal and valid; but it is also agreed that plaintiff was not a party to any of these suits, and that none of these suits affected the property claimed by plaintiff, and that he had no notice of same.”
It was shown by competent testimony that notice of the institution of suit numbered 7752 was given to the defendants by publication as required by statute in suits against unknown owners.
The court rendered a decree in this cause in which it found that “Frank Tuxworth, the plaintiff, is the owner of said lot 14; that the plaintiff is and was when the suit was commenced a nonresident; that the suit was brought by an alleged improvement district; that there was no service on the plaintiff other than that mentioned in section 5696 of Kirby’s Digest; that plaintiff had no actual notice of the pendency of the suit; that a decree was rendered against said lot for assessments claimed to be due said district for the sum claimed in said suit; that the plaintiff did not enter his appearance in said suit; that the decree was by default and ordered said lot to be sold for said assessments, penalty and costs; that at said sale defendant Whipple purchased for the amount decreed against said lot; that the plaintiff did not redeem from said sale, having no actual notice of the sale; that the sale was approved and deed executed to said purchaser of said lot; that there was no Improvement District No. 60, such as above described, and such pretended district, was void and of no legal effect whatever, for the reasons' alleged in the complaint and shown by the agreement of facts; that all proceedings under said decree were void; that said deed is a cloud upon the title of plaintiff. It therefore orders and adjudges that the decree in said No. 7752, and the said sale thereunder, be and the same are declared void, and that said deed is void and held for naught.”
The decree in the suit numbered 7752 is attacked upon the ground that the alleged improvement district in that case was not legally organized in every important particular. That was not necessary. A corporation de facto can sue and be sued, and, as a rule, do whatever a corporation de jure can do, and none but the State can call its existence in question. Tulare Irrigation District v. Shepard, 185 U. S. 1; Searcy v. Yarnell, 47 Ark. 269; West v. Carolina Life Insurance Co., 31 Ark. 476; Mississippi, etc., R. Co. v. Cross, 20 Ark. 443; Hammett v. Tittle Rock, etc., R. Co., 20 Ark. 204; 10 Cyclopedia of Law and Procedure, 256, and cases cited.
The rule, as stated by Judge Cooley in his work on Constitutional Limitations (6 Ed.), on page 309, is as follows: “In proceedings where the question whether a corporation exists or not arises collaterally, the courts will not permit its corporate character to be questioned, if it appear to be acting under color of law, and recognized by the State as such. * * * And the rule, we apprehend, would be no different if the Constitution itself prescribed the manner of incorporation. Even in such a case proof that the corporation was acting as such, under legislative action, would be sufficient evidence of right, except as against the State, and private parties could not enter upon any question of regularity. And the State itself may justly be precluded, on principles of estoppel, from raising any such objection, where there has been long acquiescence and recognition.”
The requisites to constitute a corporation de facto are three: (i) a charter or general law under which such a corporation as it purports to be might lawfully be organized; (2) an attempt to organize thereunder; and (3) actual user of the corporate franchise. Tulare Irrigation District v. Shepard, 185 U. S. 1.
In Clark on Corporations, on page 90, it is said: “Most of the courts hold that there is a corporation de facto whenever there is a valid law under which a particular kind of a corporation may lawfully be organized, and persons having the required qualifications undertake, in good faith, to organize such a corporation thereunder, comply at least colorably with the law, and afterwards assume to act as a corporation, though particular provisions of the law are not complied with. And they hold that it is altogether immaterial in such case whether compliance with the particular provisions was intended by the Legislature as a condition precedent to the formation of the corporation or not.” See cases cited.
Again, in the same book, on page 94, it is said: “There are some cases that hold, and some that seem to hold, that there can not be even a de facto corporation unless the corporators have substantially complied with all the conditions precedent prescribed by the statute; that, without such compliance, the pretended corporation does not come into existence for any purpose; and that, in the afosenSe of elements of estoppel, the objection may be raised by a private individual as well as by the State, and collaterally as well as directly. These cases, however, are contrary to the great weight of authority, and some of them are not easily reconciled with other decisions of the same court. To constitute a corporation de facto, there must, it -is true, be colorable compliance with the statute, but there need not be more. There need not be a substantial compliance. A substantial compliance makes the body a corporation de jure.”
In Finnegan v. Noerenberg, 52 Minn. 239, it is said: “Color of apparent organization under some charter or enabling act does not mean that there shall have been a full compliance with what the law requires to be done, nor a substantial compliance. A substantial compliance will make a corporation de jure. But there must be an apparent attempt to perfect an organization under the law. There being such apparent attempt to perfect an organization, the failure as to some substantial requirement will prevent the body being a corporation de pire; but if there be user pursuant to such attempted organization, it will-not prevent it being a corporation de facto.” Stout v. Zulick, 48 N. J. L. 599; Baton v. Walker, 76 Mich. 579.
In Swartwout v. Michigan Air Line Railroad Co., 24 Mich. 393) Judge Cooley, in delivering the opinion of the court, said: “It is obvious that all questions of regularity in the proceedings on the part of the associates in taking upon themselves corporate functions purporting to emanate from the sovereignty are questions which concern the State, rather than individuals, and should only be raised in a proceeding to which the State has seen fit to make itself a party. The trial of an issue, on a complaint by the State, of usurpation would determine the matter finally, but the trial of the same issue in a suit with an individual would settle nothing for future controversies, but the same question might arise again and again, and perhaps be decided differently on different trials. This point would have been open to no controversy whatever, had the plaintiff been organized under a special charter, and had we had no constitutional provisions forbidding the granting of such charters. Proof of charter- and of user under it would have been sufficient to establish a prima facie right in the plaintiff to sue. * * * * And this prima facie case an individual would not be suffered to dispute, for the reason already suggested, that the question is not to be tried in a suit where it would only arise collaterally, and where the -State, as -the party chiefly concerned, could not be heard by its counsel. * * * But both in reason and on authority the ruling should be the same where an attempt has been made to organize a corporation under a general law premitting it.” McFarlan v. Triton Insurance Co., 4 Denio, 392.; Spring Valley Water Works v. San Francisco, 22 Cal. 434; Mackall v. Chesapeake & Ohio Canal Co., 94 U. S. 308; 3 Cook on Corporations (4 Ed.), § 637.
In Dean v. Davis, 51 Cal. 406, it was held that “an act of the Legislature which requires the supervisors of a county, upon the petition of persons in the possession of more than one half of the acres of any specified portion of the county, to erect such'specified portion into a levee district for the purpose of reclaiming the same from overflow, and then provides the details by which the reclamation shall be effected, makes a levee district organized by the board of supervisors a corporation, and a public corporation, even if the act does not in terms declare it a corporation.” The court said: “In authorizing the district to be organized under a particular name, and endowing it with so many of the powers of a natural person, and particularly with the power to make contracts, incur debts, issue bonds, levy and collect assessments, and have perpetual succession, it would appear to be manifest that the intention was to endow it with corporate rights.” People v. Reclamation Dist., 53 Cal. 348; People v. Williams, 56 Cal. 647; Hoke v. Perdue, 62 Cal. 546; People v. La Rue, 67 Cal. 528,
In the same case the court held that “in such case, if the petition to the board of supervisors appears on its face to be signed by persons owning a majority of acres, and the district is in fact exercising corporate powers, the validity of its corporate existence can be tested only by proceedings in behalf of the people, and it can not be shown in a collateral action that persons owning a majority of acres did not sign the petition, and that the charter was therefore procured through fraud.”
Irrigation districts organized by boards of supervisors upon the same plan as districts for reclamation of lands in Dean v. Davis, supra, with similar general powers in many respects, were held to be corporations. Central Irrigation District v. De Lappe, 79 Cal. 351; In re Madera Irrigation District, 92 Cal. 296; Quint v. Hoffman, 103 Cal. 506.
Improvement districts in this State are organized by the city councils of cities and towns under a valid law. They are given a particular name, and endowed with perpetual succession until their object is accomplished, with power to make contracts, incut debts, issue bonds, collect assessments, to sue, and to compel the city council by mandamus to make assessments. Morrilton Waterworks Improvement District v. Earl, 71 Ark. 4; Lenon v. Brodie, ante p. 208. The effect of the statutes is to make them corporations, though they are not denominated such.
The sections of Kirby’s Digest which empower city councils to organize improvement districts in this State are as follows1.
“Section 5665. When any ten resident owners of real property in any such city or incorporated town, or of any portion thereof, shall petition the city or town council to take steps to ward the making of any such local improvement, it shall be the duty of the council to at once lay off the whole city or town, if the whole of the desired improvement be general and local in its nature to said city or town, or the portion thereof mentioned in the petition, if it be limited to a part of said city or town only, into one or more improvement districts, designating the boundaries of such district so that it may be easily distinguished; and each district, if more than one, shall be designated by number and by the object of the proposed improvement.
“Section 5666. Within twenty days after the designation of such district or districts the clerk of said city or town shall publish the ordinance of the council establishing the district in some newspaper published in said city or town, for one insertion.
“Section 5667. If within three months after the publication of any such ordinance a majority in value of the owners of real property within such district adjoining the locality to be affected shall .present to'the council a petition praying that such improvement be made, which petition shall designate the nature of the improvement to be undertaken, and that the cost thereof be assessed and charged upon the real property situated within such district or districts, the city council shall at once appoint three persons, owners of real property therein, who shall compose a board of improvement for the district.”
The decree in suit numbered 7752 was based upon the presumption that Improvement District No. 60 was legally organized under the foregoing sections of the Digest. Kansas City, Pittsburg & Gulf Railway Company v. Waterworks Improvement District No. 1, 68 Ark. 376, 378. That presumption attends the decree until it is overcome .by competent evidence, and in this _ case the burden to do so is upon the appellee. He attempts to do s.o by an admission of parties “that no petition signed by ten resident owners of real property within the territory embraced in said alleged Improvement District No. 60 was ever presented to the city council of Little Rock, Arkansas, asking that said district be established, as required by section 5322 of Sandels & Hill’s Digest, and that said District No. 60 was never legally created.” This does not show that ten owners of real property in the district did not sign the petition, but that there were not ten of such owners resident in the district who signed the petition, and how much less than ten does not appear. This was the only defect in the organization of the district.
What was meant by the use of the words, “ten resident owners of real property in any city or incorporated town,” whether residents of the city or town owning real property in the district proposed, or ten residents of such district owning real property therein, was a subject of much doubt, a question about which lawyers and courts differed until the opinion in Board of Improvement District No. 60 (the district now in question) v. Cotter, 71 Ark. 556, was delivered. The city council of Little Rock took the former view. This court held that the latter was correct. In view of the ambiguity of the statute, the effort to organize the district is presumed to have been made in good faith. There is no reason assignable why it was not. After its organization it collected assessments on property therein from May, 1892, until the decision in Board of Improvement District No. 60 v. Cotter, 71 Ark. 556, which was on the 24th of October, 1903, more than eleven years, expended considerable sums of money in improving the streets and erecting bridges over a creek within the territory embraced in the district, and brought many suits in the Pulaski Chancery Court, including one in which the legality of the district was directly attacked and involved, and the court held the organization thereof to be legal and valid. All of which and the organization were sufficient to constitute it a corporation de facto.
It is true that it was held in Board of Improvement District No. 60 v. Cotter, 71 Ark. 556, that “ the filing of the petition prescribed by section 5665, supra, supported by the signatures of ten resident property owners of the proposed district, was mandatory and jurisdictional;” and that “all the proceedings of the city council in the attempted establishment and operation of Improvement District No. 60 were void.” But that suit was brought for the purpose of collecting certain assessments which, it was alleged, were a charge on the property of appellee. The existence of the district as a corporation de facto was not involved in that suit, and what is held in that case does not affect its existence as such. The failure to file the petition of ten resident owners of real property in the district was .pleaded as a defense in bar of the collection of the assessment. As a corporation de facto, it may •be entitled to bring an action, and still be unable to maintain it. The assessment in the Cotter case was void. It was made by the city council, and the defects which rendered it void did not affect the district as a corporation de facto. Its existence as such can be questioned only by the State in a proceeding instituted for that purpose.
The district as a corporation de facto was entitled to institute the suit numbered 7752 against the lot in question. The failure of the ten resident owners of -real property tó file the petition as prescribed by section 5665, supra, could' have been set up as a defense in that suit; but, as it was not done, the effect of the decree ■therein was to sweep it away, and to debar it from being set up in any subsequent suit. Roth v. Merchants & Planters Bank, 70 Ark. 203; Ellis v. Clarke, 19 Ark. 421; Bell v. Fergus, 55 Ark. 538; Davis v. Brown, 94 U. S. 423.
The decree of the chancery court is reversed, and'the cause is remanded with directions to-the court, to dismiss complaint of appellee for want of equity. | [
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McCulloch, C. J.
This litigation calls for an interpretation, and involves the validity, of a statute enacted by the General Assembly of 1921, providing for the col-, lection of a tax upon the sale of “gasoline, kerosene or other products to be used by the purchaser thereof in the propelling of motor vehicles using combustible type engines over the highways.” (Acts 1921, p. 685). The va lidity of the tax is 'Challenged on numerous grounds, which will he discussed in the order presented in the briefs, of counsel.
The title of the statute is as follows: “An Act to levy a tax upon gasoline used in the "propelling of motor vehicles, and for other purposes.”
Section 1 of the statute, which is the one imposing the tax, reads as follows:
“That all persons, firms or corporations who shall sell gasoline, kerosene or other products to be used by the purchaser thereof in the propelling of motor vehicles, using combustible type engines, over the highways of this State, shall collect from such purchaser, in addition to the usual charge therefor, the sum of one cent (lc) per gallon for each gallon so sold.”
Section 2 requires all dealers in the sale of gasoline for use in propelling motor vehicles to register with the county clerk of their respective counties and to file a report on or before the tenth day of each month, showing the sales of gasoline, kerosene'or other products purchased for use in the propelling of motor vehicles.
Section 3 provides that all dealers who shall sell gasoline or other products upon which the tax is imposed and who shall fail to collect the same “shall be personally liable for the amount of such tax so uncollected,” and that such dealers shall pay to the treasurer of the county the sum of one cent per gallon for all gasoline sold for the purposes named.
Section 4 requires all wholesale distributers of gasoline and like products suitable for the use of propelling motor vehicles to file with the county clerk of their respective counties a statement showing the amount of gasoline and other such products sold by them to retailers. A penalty of not less than ten nor more than one thousand dollars is imposed on dealers who shall fail to account for all moneys due by them under the terms of the statute.
Another section provides that of the tax so' collected one-half shall be credited to the general road fund of the county, and the other half shall he transmitted to the treasurer, to be placed to the credit of the highway improvement fund.
It is first contended, in the attack on the validity of the statute, that it constitutes the imposition of a property tax on gasoline and the other commodities mentioned, and that it is void because in violation of the uniformity clause of the Constitution of this State. It is conceded in all quarters that if the imposition is, in effect, a property tax it is void. This calls for an interpretation of the statute for the purpose of determining the character of tax sought to be imposed.
In the outset of the discussion it is well to call attention to certain rules of interpretation for the purpose of determining the constitutionality and validity of a legislative enactment.
The Supreme Court of the United States has said that “the elementary rule is that every reasonable construction must be resorted to in order to save the statute from unconstitutionally. ” Hooper v. California, 155 U. S. 657.
In the recent case of Dobbs v. Holland, 140 Ark. 398, we announced the same rule, and we treated it as so familiar in the rules of interpretation of statutes that it was unnecessary to cite authorities in support. We have also said that if a statute is susceptible to two constructions, one of which would lead to an absurdity and the other not, the latter would be adopted. State v. Jones, 91 Ark. 5. There are many decisions of this court announcing and adhering to those rules and giving them application under a variety of circumstances. Hartford Fire Ins. Co. v. State, 76 Ark. 303; Pryor v. Murphy, 80 Ark. 150; Bowman v. State, 93 Ark. 168; Garland Power & Dev. Co. v. State Board of R. R. Incorporation, 94 Ark. 422; Hughes v. Kelley, 95 Ark. 327; Leonard v. State, 95 Ark. 381; State v. Handlin, 100 Ark. 175; Snowden v. Thompson, 106 Ark. 517; State v. Trulock, 109 Ark. 556.
In the case of State v. Trulock, supra, we quoted, with approval, the following statement on this subject by Mr. Sutherland:
“The mere literal construction of a section in a statute ought not to prevail if it is opposed to the intention of the Legislature apparent by the statutes; and if the words are sufficiently flexible to admit of some other construction, it is to be adopted to effectuate that Intention. The-intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.” 2 Lewis’ Sutherland, Statutory Construction, § 376.
When the interpretation of this statute is approached in conformity with the rules thus stated, it is easy to discover in the language an intention on the part of the lawmakers to impose a tax, not on property, but on a privilege, so as to bring the enactment within constitutional limits. The tax is not imposed on the sale or purchase of gasoline, nor on the gasoline itself, nor even on the use of the gasoline. On the contrary, the final and essential element in the imposition of the tax is that the gasoline purchased must be used in propelling a certain kind of vehicle over the public highways. In the final analysis of this language it comes down to the point that the thing which is really taxed is the use of the vehicle of the character described upon the public highway, and the extent of the use is .measured by the quantity of fuel consumed, and the tax is imposed according to the extent of the use as thus measured.
If it had been intended merely to tax the gasoline or its use, it would have been wholly unnecessary to describe the character of the use or the place where it was to be used, and the fact that the lawmakers incorporated these elements in laying the bases of the taxation shows unmistakably that it was intended to impose a tax upon the use of the public hig’hways by the method described. It is clear that the tax is not imposed on the seller nor upon the gasoline while in his hands, and this of itself makes it manifest that there was no intention to levy a tax upon the sale of gasoline nor upon the gasoline itself.
“In construing a statute,” said this court in State v. Embrey, 135 Ark. 262, “some meaning should be given to every word contained therein, if possible.” ' It is our duty, therefore, to give some meaning and effect to that part of the statute which prescribes the use of the gasoline in propelling an automobile along the highway as the final test of the basis of the tax, and especially is it our duty to do this when the constitutionality of the statute depends upon giving some effect to that feature of it.
Counsel for appellants insist that, even if this is not a direct tax on the gasoline itself, it is, at least, a tax on the use of the gasoline, and that this constitutes a tax on the property itself, for the reason that it is a tax on the only available use to which the article is susceptible. In other’ words, they invoke the rule' that has been announced in some quarters, to filie effect that'a tax levied upon the only available use to which.an article is susceptible is, in effect, a tax on the article itself. 26 R. C. L. 236.
It may be conceded that a tax on gasoline for its only available use would, in effect, be a tax on the commodity itself, but such might not be the case as to other articles, and we are unwilling to subscribe unqualifiedly to the doctrine that a tax on the only available use of an article is, in every instance, a tax on the article itself. In fact, this court repudiated the doctrine in the case of Fort Smith v. Scruggs, 70 Ark. 549, where Judge Riddick, speaking for the court, said:
“Counsel say that a tax on the use of an article is a tax on the article itself. While this may be true of a piano, bedstead, or cooking-stove, the.use of which involves no injury or detriment to the public or its property, as to wheeled vehicles it is different, for they are made to be used upon roads and streets. The streets belong to the public, and are under the control of the Legislature, whose province it is to enact laws for their improvement and repair. The chief necessity for keeping improved streets is that they may be used for the passage of wheeled vehicles, and the wear of the streets caused by the passage of such vehicles over them makes necessary constant and expensive repairs. For this reason, no doubt, the Legislature considered it to be equitable and just that owners of such vehicles should, in addition to the general tax upon their property, pay something for the privilege of using the streets as driveways, the amount paid to go towards keeping the streets in good repair. This is what the Legislature attempted to do.”
But, as we have already said, this is not a tax on gasoline, but on the use on the public highway of the vehicles mentioned, and the case comes, therefore, within the doctrine announced by Judge Riddick in the Scruggs case, supra, that the tax on the article used does not constitute a tax on the article itself, for the privilege is not upon the article but upon the use of it on the public highway. It is, in effect, the use of the public highway that is taxed, and not the use of the article itself.
Among other reasons stated by counsel for appellants in the argument why this statute should not be interpreted as imposing a tax on automobiles used on the public highways, is that such a tax is imposed under another statute, and that a statute amending the former one and increasing the amount of taxes was passed by the Legislature and approved by the Governor only a few days before the enactment of the statute now under consideration. Acts 1921, p. 490. This is indeed a circumstance of some value in arriving at the intention of the Legislature, but it is by no means conclusive, for the other statute merely levied a tax on the privilege according to the capacity of the car, whilst the present statute, as now interpreted, imposes a tax on the privilege according to the extent of the use of the car. It is not unreasonable to suppose that by the former statute the lawmakers intended to impose a minimum privilege tax, laid according to the capacity of the ear, and by the statute now under consideration they intended to impose an additional tax according to the extent of the use of the car on the public highway. It is, at least, our duty to ascribe to tbe lawmakers such an intention as is compatible with the Constitution of the State, by which they were bound, and to which, we must presume, they intended to conform.
Our conclusion, therefore, is that, under a fair interpretation of the statute, it imposes, not a property tax, but a tax upon the privilege of using automobiles on the public highway.
The validity of the tax is questioned, even as a privilege tax, on the ground that the Legislature had no power to impose it as a State tax for revenue purposes.
The Constitution provides (sec. 5, art. XVI) “that the General Assembly shall have power from time to time to tax hawkers, peddlers, ferries, exhibitions and privileges in such manner as may be deemed proper.” It is contended that this provision of the Constitution is a limitation upon the taxing power of the State for revenue purposes, and that the power to tax is limited to the subjects specifically mentioned — that the use of the word “privileges” must be construed, under the doctrine of ejusdem generis, to relate only to the subjects which precede its use. Counsel rely, for this contention, upon .the decision of this court in Washington v. State, 13 Ark. 752, under a provision of the Constitution of 1836 almost identical with the provision on this subject in the present Constitution. We do not think that the case just cited decides what counsel contend that it does. The substance of that decision is that the constitutional provision mentioned'is a restriction upon the power of taxation of privileges, and that it does not authorize taxation upon a privilege which was a common right of every citizen.
In the later case of Baker v. State, 44 Ark. 134, Chief Justice Cockrill summarizes the effect of the ruling in the Washington case, supra, as follows:
“We do not understand this case, reading it all together, to limit the power of legislation for State purposes to the taxation of such privileges as were technically known as such at the common law, notwithstanding an expression to that effect occurs in the opinion. We think the Legislature is not restrained by anything in the organic law from laying a tax on the franchise of a corporation, and the reasoning of the learned judge who delivered the opinion in Washington’s case, supra, leads to that conclusion. ’ ’
We understand the effect of this decision to be that the restriction is not to the privileges specifically mentioned in the Constitution, nor privileges which were “technically known as such at the common law,” but that the restriction relates merely to privileges which were matters of common right. This being true, there is nothing in the provision of the Constitution referred to which prohibits taxation for State purposes of the use of the public roads. While the public highways are for the common use of all, they belong to the public, and it is within the power of the Legislature either to regulate or to tax the privilege of using them. This power was declared in express terms by Judge Riddick in the Scruggs. ease, supra.
Again it is argued that the statute, treating it as imposing a privilege tax, is arbitrary and unreasonable in that it discriminates against the users of certain kinds of cars, while exempting from the burden of taxation users of other kinds of cars, and that it also exempts -cars propelled by the use of gasoline not purchased in this State. Illustrations are given of the discriminatory effects of the statute in the fact that it includes only motor vehicles using combustible type engines, whereas there are certain motor cars in use that are propelled, some by electricity and some by steam; also that residents near the borders of the State may conveniently purchase gasoline in a bordering State for use in a car propelled along the highway in this State.
It is true that, under the terms of the statute, a motor car propelled otherwise than by the explosive type of engine escapes the taxation imposed by the statute, and it must also be conceded that evasions of the law in the manner indicated in the argument of counsel are possible, But this does not render the statute arbitrarily discriminatory in a legal sense.
We have often said that complete uniformity in matters of taxation is unattainable, and it is not essential to the validity of a tax, either upon property or upon privilege, that it be absolutely free from inequalities or discrimination. The lawmakers have some discretion, even in legislating with reference to the power of taxation as restricted by the terms of the Constitution, and they may determine the scope and extent of the exercise of the taxing power, and a mere incidental inequality or discrimination does not affect the validity of the statute.
The Supreme Court of the United States, in the case of Ozan Lumber Co. v. Union County National Bank, 207 U. S. 251, speaking on a kindred subject, said:
“It is almost impossible, in some matters, to foresee and provide for every imaginable and exceptional case, and a Legislature ought not to be required to do so at the risk of having its legislation declared void, although appropriate and proper upon the general subject upon which such legislation is to act, so long as there is no substantial and fair ground to say that the statute makes an unreasonable and unfounded general classification, and thereby denies to any person the equal protection of the laws. In a classification for govermental purposes there cannot be an exact exclusion or inclusion of persons and things.”
The same principle has been announced and applied by this court in Williams v. State, 85 Ark. 464; St. L. I. M. & S. Ry. Co. v. State, 86 Ark. 518; St. L. I. M. & S. Ry. Co. v. State, 102 Ark. 205, and State v. Kansas City & Memphis Ry. & Bridge Co., 117 Ark. 606.
The fact that there may be evasions of a taxation statute does not affect its validity, for all such statutes are open to evasions. If the general classification is not discriminatory, then mere incidental discriminations or opportunities for evasions do not affect its validity.
It is next contended that the due process clause of the Constitution of this State and of the United States is violated by the requirement laid upon the dealers in gasoline to collect and pay the tax. It must be remembered that the tax is not laid on the sale of the gasoline, nor upon the business of the dealer. The dealer is not required to pay the tax, but to collect it, keep and present an account thereof and pay it over to the'county treasurer. The purpose of the statute is two-fold, namely, to impose a tax upon the purchaser of gasoline for the use of the car, and to regulate the business of the dealer by requiring him to collect the tax and pay it over to the county treasurer. It is certainly within the power of the Legislature to regulate the business of selling gasoline, and it is not an unreasonable regulation, for it does not involve the payment of any fee, nor the pérformance of any unreasonable task.
Counsel base their contention in this respect upon decisions, particularly those of the Supreme Court of the United States, holding that the validity of a regulation requiring the collection of a tax upon corporate stock at the source, that is, through the corporation issuing the stock, is dependent upon the fact that a lien is given to the corporation against the stock in the hands of the holder — in other words, that there must be some mode of reimbursement provided before the duty can be imposed upon a person other than the taxpayer to collect the tax. Clement National Bank v. Vermont, 231 U. S. 120; New York v. Purdy, 231 U. S. 373; First National Bank v. Commonwealth, 9 Wall. 353; First National Bank v. Chehalis County, 166 U. S. 440; Citizens’ National Bank v. Kentucky, 217 U. S. 443; National Safety Deposit Co. v. Stead, 232 U. S. 58.
That principle is not ignored in the provisions of the statute now under consideration, for the dealer has ample opportunity to reimburse himself in advance bv the collection of the tax before the commodity is delivered. He has the power to compel obedience to the law by refusing to sell the gasoline unless the tax is paid, and the dealer may adopt reasonable means of ascertaining the real purpose of the purchaser of the article. Of course, there may be evasions, and it cannot always be definitely ascertained what the purpose of the purchaser of the gasoline is, so as to determine whether or not he is attempting to evade the law, but, as before stated, these inherent defects in all such statutes do not affect their validity.
The presumption must be indulged that the vast majority of people who purchase gasoline for use in motor vehicles will obey the law rather than attempt to evade it, and the fact that the few may evade the law does not afford reasons for striking it down. There is scarcely a tax law on the statute books of this or any other State that is not evaded in exceptional instances.
Finally, it is argued that the law is vague and uncertain — so much so that it is incapable of enforcement. The interpretation which we have given to the statute, and which, we think, is a fair and reasonable one, relieves it from this charge of uncertainty, for we think that it means what we have stated in this opinion, and that it can be readily understood.
The fact that there may be a difference of opinion as to the meaning of the language of a statute does not render it too vague or uncertain to be enforceable. It is not infrequent that statutes have to be construed by the courts before laymen, or even lawyers, have a settled view as to the proper interpretation, but a statute which is fairly susceptible to definite interpretation is not too vague for enforcement.
Our conclusion therefore upon the whole case is that the statute is valid, and the decree is therefore affirmed. | [
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Smith, J.
Appellant was tried and convicted under an indictment containing two counts. The first count alleged that he robbed one A. E. McConnell. The second count alleged that one Sam Harmon had robbed McConnell, and that appellant “unlawfully and feloniously did stand by, aid, abet and assist the said Sam Harmon to do and commit said robbery in manner and form aforesaid.”
Appellant appeared without counsel and asked permission to conduct his own defense. This right was ao corded him after the court had offered to appoint counsel to defend him if he desired counsel to be appointed.
The jury returned the following verdict: “We, the jury, find the defendant, John Williams, guilty of the crime of being an accessory to the crime of robbery as charged in the indictment, and fix his punishment at imprisonment in the State Penitentiary for a period of three years. (Signed) J. W. Phillips, foreman.” Thereafter appllant employed counsel to represent him, and the attorney so employed filed a motion for a new trial, assigning numerous errors for the reversal of the judgment.
Most of the errors assigned relate to incidents connected with the trial in the admission and exclusion of testimony and in giving and refusing to give instructions; but, as no objections were made or exceptions saved,these questions are not presented for review. Morris v. State, 142 Ark. 297.
The Constitution gives one accused of crime the right to appear by himself and his counsel; but the services of an attorney cannot be forced upon him. Article 2, § 10, Const. 1874. He has the right, if he so elects, to conduct his own defense, but he does not thereby become absolved from the duty of observing the rules of practice designed to promote the orderly administration of the law. Appellant should therefore have made objection to such rulings of the court below as he cared to have reviewed by this court, and, as he made no objection to anything that occurred at his trial, there is presented for our review only such questions as can be raised without objection first being made in the court below.
A motion in arrest of judgment was properly overruled, as it is provided by statute that ‘ ‘ the only ground upon which a judgment shall be arrested is, that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court; and the court may arrest the judgment without motion on observing such defect.” Section 3224, C. & M. Dig. The facts set out in the indictment do constitute a public offense. .
No question is made about the sufficiency of the first count of the indictment charging appellant with the crime of robbery. The insistence- is that the indictment apon which appellant was tried charged him with being guilty of the crime of robbery, whereas the jury returned a verdict against appellant of being an accessory to the crime of robbery — a crime not alleged or charged in the indictment.
We think appellant was charged with only one crime, and that was the crime of robbery. This crime was charged in two ways; first, that appellant did, himself, rob McConnell; second, that Sam Harmon robbed McConnell, and that appellant ‘ ‘ did stand by, aid, abet and assist the said Sam Harmon to do*and commit said robbery.” But, as we have said, the two counts charged but a single offense.
This question was gone into thoroughly in the case of Hunter v. State, 104 Ark. 245, and what was there said is decisive of the question here raised. The indictment in that case charged that Hunter had killed and murdered one Patterson by stabbing him with a knife,- whereas no attempt was made to show that Hunter had struck the fatal blow as charged, but only that he was present aiding and abetting in the commission of the offense, which was done by one Monaseo.
It was there pointed out that our statutes have abolished the distinction existing at common law between principals in the first and second degrees, and that where this has been done, “an indictment of a principal in the second degree need not aver any facts other than those requisite to an indictment of the principal in the first degree. 22 Enc. Law & Pro. p. 360. See also 10 Enc. Pl. & Pr. p. 156.”
It was there further said: ‘ ‘ One present -aiding and abetting the commission of a felony, formerly a. principal in the second degree, is, under the statute, responsible for the result of the act done as though he had done it himself, a principal offender, and must be indicted and punished as such; and, in charging appellant with having stabbed the deceased with a knife, his act was stated according to its legal effect, and a verdict upon testimony tending only to show that he was present, aiding and abetting in the commission of the offense is responsive to the charge, and not a variance therefrom. There is no longer a distinction between principals in the first and second degree, but all are principal offenders, and are required to be indicted and punished as such. Evans v. State, 58 Ark. 47; State v. Kirk, 10 Ore. 505; Usselton v. People, 149 Ill. 612; State v. Payton, 90 Mo. 220; Commonwealth v. Chapman, 11 Cush. 428.”
The court there quoted with approval from 2 Bishop’s Crim. Proc. § 1, § 3, par. 2, the following statement of the law: “Whenever one person’s evil intent and another’s criminal act combine, the allegations against the former may be either direct, that he did the thing, according to its legal effect, or indirect, that he instigated or procured the other to do it according to its outward form, and he did it. Whichever method is used in the averment, the proof may be that the defendant employed his personal volition or that he instigated another who did the act, as may be the more convenient to the practioner.” But, after saying the practitioner might allege the commision of an act according to its legal effect, or according to its outward form, the same author says that “not often will the pleader elect to charge one as principal of the second degree; because, since this participant can be equally well convicted on -an allegation of being the actual doer, or principal of the first degree, the latter method will ordinarily be deemed the more convenient. ’ ’ Bishop’s Directions and Forms, § 115. This quotation also appears and is approved in the case of Hunter v. State, supra.
We have here an indictment which does in fact what Bishop says the pleader will not often elect to do, that is, -charge one as principal in the second degree; but, as has been seen, this was not an improper thing to do, and the form of the verdict indicates that the conviction was had on this count.
The indictment also charges appellant as being a principal in the first degree; and this is the ordinary way of alleging the commission of the crime, but, as appears from the opinion in the case of Hunter v. State, supra, the two counts charge a single offense, and we need not further repeat the reasoning of that case here.
It is finally and very earnestly insisted that the testimony does not support the verdict. But, in our opinion, it is legally sufficient for that purpose. The testimony on behalf of the State is that Harmon — whose own conviction was affirmed by us on October 31,1921, appeared at the home where McConnell lived with his maiden sister, a lady seventy-five years old. This old couple had a small iron safe, which Harmon compelled McConnell to unlock, and about $700 in money was found there, of which amount about $25 was in gold. The robber believed the old couple had more gold and demanded its surrender, and refused to accept as true their protestations that they had no more gold or other money. Both McConnell and his sister were bound, and for an hour or more they were subjected to' revolting indignities and fiendish cruelty, all for the purpose of making them disclose the whereabouts of the gold which'the robber insisted they possessed. While these outrages were continuing a second robber, who evidently had previously been on guard, came into the room. Both robbers wore masks, but they remained in the room long enough for the McConnells to closely observe them, and when Harmon was arrested and brought before them for identification. a few days after the crime was committed, they were both positive that Harmon was one of the men who had abused and robbed them. They were less certain about the identity of appellant, but they both testified that he was about the size and make-up of the man who assisted in the robbery. A boy eighteen years of age, named Clarence Hill, testified that on the night of the robbery he saw Harmon and appellant at a place two miles from where Harmon and appellant lived and about six or seven miles from the McConnell home, and they were walking from the direction of the McConnell home to their own home, and as he got within twenty-five or thirty feet of them, they stepped ont by the side of a tree. Witness thought the men he saw were his father and a man named Phillips, and that they were trying to frighten him. So, to be reassured, he called out, “Where are you going?” and one of the men answered, “We are going fishing.” Witness asked, “What did you catch?” and the same man answered, “Twenty” or “Forty,” (the witness didn’t remember which), and, after giving this last answer, they turned out of the road and went on. Appellant subjected this witness to a very searching examination, and made him admit that he might be mistaken, his statement being, “Of course I can’t swear positive that it was them, but I do swear that I believe it was them.” This witness also testified that he told his father the following day about meeting Harmon and appellant and seeing them leave the road and walk under a tree, and that he thought these men were his father and Phillips, and that they were trying to frighten him.
There was also testimony to the effect that appellant called on Sam Harmon after the latter had been arrested and said to him that if he hadn’t already told anything, to keep his mouth shut, and he gave Harmon $5 and left the country the day before Harmon’s trial commenced.
A witness named Harmon — whose relationship to Sam Harmon, if any existed, does not appear — testified that he heard a conversation between appellant and one Eddie Harmon, in which appellant solicited Eddie Harmon to assist in paying his attorney’s fee, and stated that, if Eddie Harmon would do so, he (appellant) could beat his own case, and he (Eddie Harmon) would not thereafter be prosecuted. Will Harmon also testified that appellant solicited him to make a false charge on his books, dating it the day of the robbery, to aid appellant in establishing his alibi.
It may be said that appellant offered the testimony of several witnesses in support of his alibi, which, if true, made it impossible for him to have been present at the time of the robbery. This testimony was evidently not believed by the jury, as is indicated by the verdict of guilty.
There is no error, and the judgment is affirmed. | [
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Humphreys, J.
Appellant instituted suit against appellees in the Howard Circuit Court to recover $282.90 for advances alleged to have been made by appellant to appellee John Graham to enable him to produce a crop on lands rentéd to him by appellant. It was alleged that, after the major part of the crop had been planted, appellee John Graham sold the crop to appellee, A. F. Utley, by and with the consent of appellant, the consideration being that A. F. Utley should pay all of Graham’s indebtedness to appellant on account of advances made to make said crop. Appellee A. F. Utley filed an answer, admitting that he purchased the crop by and with the consent of appellant, with the understanding that he would pay Graham’s indebtedness to appellant on account of advances made to plant the crop, upon condition that John Graham would stay on the place and help produce the crop; that, after remaining two or three weeks, said Graham refused to further assist in the cultivation of the crop and moved off the place. The cause was submitted to a jury upon the pleadings and evidence, which resulted in a verdict in favor of appellant for $141.45. Thereupon appellant moved for a judgment for $255.90, notwithstanding the verdict, on the ground that under the undisputed evidence appellant was entitled to recover that amount. Over the objection and exception of appellant, the court overruled the motion and rendered judgment in accordance with the verdict, from which an appeal has been duly prosecuted to this court.
The record reflects that appellant rented and was residing upon the farm of Dr. Toland in the year 1920; that he rented a part of the land to appellee John Graham on which to. plant corn and cotton; that after planting all of the corn and a part of the cotton he sold the crop, with appellant’s consent, to appellee A. F. Utley. At the time the sale was made appellant had made advances to appellee Graham in the total amount of $282.90, all of which was used in planting the crop, except $27 furnished to Graham for a wedding suit. The evidence introduced by appellant tended to show that the consideration for the purchase of the crop was the absolute assumption by A. F. Utley of. Graham’s indebtedness to appellant on account of advances made by appellant to plant the crop. The evidence introduced by appellee Utley tended to show that he assumed the indebtedness of Graham for said advances on condition that; Graham would remain upon the place and assist in the cultivation of the crop; that he refused to render this assistance and moved away from the farm.
Appellant insists that it was the duty of the court to declare as a matter of law upon the record in the case that he was entitled to recover the sum of $255.90, notwithstanding the verdict of the jury to the effect that he was entitled to recover only $141.45. This insistence of appellant is based upon the fact that the verdict of the jury settled the only controverted question of fact in favor of appellant, which finding necessarily entitled plaintiff to a judgment for the full amount of the advances made and used in planting the crop. The uncontradicted testimony revealed that appellant had advanced Graham, at the time he sold the crop to Utley, $255.90, which was used in planting the crop. The only dispute in the testimony was whether at the time of the purchase Utley assumed the payment of the amount so advanced. absolutely or conditionally. The theory of appellant was that he assumed the payment absolutely, and that of appellee Utley was that he assumed the payment conditionally, and that the condition failed. The cause was submitted to the jury upon each theory, and the finding of the jury in favor of appellant in any sum was necessarily a settlement of the disputed fact in favor of appellant, and against appellee Utley. The finding in favor of appellant in an amount less than the amount advanced was therefore an arbitrary finding. The verdict, as to the amount, was necessarily without any evidence to support it, as the undisputed evidence showed appellant was entitled to the whole amount advanced for the purpose of planting the crop or to nothing. •In this state of the record it was the duty of the court to sustain the motion filed by appellant and render a judgment upon the undisputed facts disclosed by the record for the full amount of the advances made to plant the crop, notwithstanding the verdict of the jury for a less amount. Collier v. Newport Water, &c., Co., 100 Ark. 47; Scharff Distilling Co. v. Dennis, 113 Ark. 221.
The judgment is therefore reversed, and judgment directed to be entered here for $255.90 in favor of appellant. | [
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Woon, J.
On August 1,1917, George B. Fletcher and Ella Mae Goodrnm (hereafter for convenience called Fletcher-Goodrum) executed an assignable lease to W. W. McCreary to 160 acres of land, and on the same day W. A. Williams executed a similar lease to McCreary to 720 acres, of land, all in Lonoke County, Arkansas. The consideration for the Fletcher-Goodrum lease was an annual rental of $720, and of the Williams lease for1 the annual rental of $5,500, both payable in advance. The leases gave the lessee an option to purchase at sums named therein at any time during the period of the leases. The Fletcher-Goodrum lease ran until December 31,1920, and the Williams lease until December 31, 1921. The lessee, or his assigns, were given the right of cancellation upon written notice to the lessors on or before October 1st in any year, the possession of the premises to-be surrendered on or before the end of the year in which notice was given.
Among other provisions the leases contained the following: “In case of the removal or destruction of irrigation plant machinery, houses or fences, the lessee or its assigns shall replace such improvements in as good condition as the same were at the date of this lease contract, at the conclusion of the lease. * * * * The undersigned (landowner) further agrees * * * * to permit the removal of buildings and improvements which may be erected by the lessee or his assigns, at the expiration of the lease.” * * * * “He (lessee) shall have the right to assign or sublease the same to the United States Government, its officers, agents, or attorneys.”
On the 26th of October, 1917, McCrary executed the following assignments of the leases: “For and in consideration of the sum of $1 and other valuable considerations, I, W. W. McCrary, do hereby transfer, assign and sublease the foregoing contract with all rights thereto to Charles A. Walls, president of the Lonoke Chamber of Commerce, for the use and benefit of the United States Government.”
The contract between the Chamber of Commerce, the lessor, and the lessee, the United States, contained among others the following provisions: “That said lessor agrees that the lessee, without expense, may demolish or destroy any and all buildings, and any crops now growing on said land, in so far as they interfere with the use of the site for aeronautical purposes.” “That the said lessor shall close all roads on the property hereby leased, seeking such legal proceedings as may be necessary to effectuate the same.” “The lessor agrees that, at the expiration of this lease and any renewal thereof, the lessee may within a reasonable time remove any and all buildings, structures and other improvements, or part of buildings, structures, or other improvements, placed or erected on said premises, during the term thereof, or any .renewal thereof, all expenses connected with such removal to be borne by the lessee.” “That it (United States) will commit no waste and will not suffer the same to be committed, and will not misuse or. injure the said premises, except in so far as is consistent with the use of this tract for aeronautical purposes.” “That the lessee reserves the right to quit, relinquish and give up the said premises at any time within the period for which this lease is made or may be renewed, by giving to the said lessor or agents thirty days ’ notice in writing. ’ ’
The landowners for “valuable consideration” ex-' ecnted a writing ratifying and confirming the action of the chamber of commerce in the execution of the leases and option, and agreed on their part “to perform and carry out all of the terms of said lease.”
On December 10, 1919, the United States- sold its improvements on the leased lands at public auction. The officer conducting the sale for the government passed out to the bidders a printed announcement containing the conditions of the sale, which, among other things, provided: “* * * # the successful bidder to release the government from all claims of property damage from the owners of the land, and any or all claims for replacement of improvements which the United States is obligated to replace for the property owners, under provisions of lease by which this land is held. * * * * it is agreed and understood by the successful bidder that all improvements must be removed and releases as specified, in this announcement, for the United States, must be furnished its representative, the chief of construction division, War Department, Washington, D. C., on or before June 30, 1920. A surety'bond of $20,000 will be required when this deal is closed to insure the carrying out of the provisions of this announcement.”
Before the sale was announced and bidding began, Burt Brooks, an attorney representing one Pierson, announced that Pierson had purchased from Williams and had a claim for damages to the Williams lands, in the sum of $70,000 against the United States, and that the purchaser of the property would have a lawsuit on his hands. Thereupon the sale was adjourned until the afternoon. When the sale was resumed, the officer in charge read out written statements of damage claims signed by Fletcher and Goo drum, Williams, and the county judge of Lonoke County and the commissioners of Road District No. 4. Fletcher and Goodrum agreed to r'elease [the United States and the chamber of commerce from all damages to their lands for the sum of $6,561. Williams signed a similar agreement to release all damages to his lands for the sum of $10,000, and the road district agreed to release all damages to the road for the snm of $2,000. At the same time the officer in charge of the sale read the report of a board of officers appointed by him to estimate the damages. This report stated that the Williams land could be restored to its original condition for $12,850, the Fletcher-Goodrum land for $6,000, and the road to its original condition for the sum of $2,000. This board pronounced the Pierson claim a hold-up, and also stated that a $20,000 bond from the purchaser would be ample to protect the United States against all claims. The officer further stated that the government did not guarantee that $20,000 was the limit of what might have to be paid; that it might be more and might be less.
According to the version of some who were present at the sale, the officer made the further announcement that the bidders would have to take the printed announcement of the conditions of the sale just as it was read, and that the successful bidder would have to indemnify the United States against all claims of the landowners. According to another witness, the officer announced that the purchaser would be required to give a bond in the sum of $20,000 for the restoration of the field when the plant had been dismantled to its former condition.
The Lesser-Goldman Cotton Company (hereafter called company) bid $30,000 for the property of the government, and on December 15, 1920, entered into a contract with the United States which had attached thereto, and made a part thereof, copies of. the leases from the landowners to McCrary, the assignments by him to the chamber of commerce, a copy of the lease from the chamber of commerce to the United States, and a copy of the printed announcement of the conditions of the sale of the government property. The contract acknowledged a consideration of $30,000 cash paid by the company and its undertaking as to the extent set forth in the contract “to save and protect and hold harmless” the United States “from any and all claims on the part of the owners of the lands (describing them) for and on account of all property damages to said lands, and all replacements or improvements thereon, 'and all removals of structures therefrom which” the United States “may be under obligations to pay and replace and remove pursuant to the provisions of the leases which were taken from the said owners of said lands by W. W. McCrary, and by the latter assigned to the Lonoke Chamber of Commerce, and of the lease which was taken by” the United States “from the said Lonoke Chamber of Commerce with ratifications thereof by the respective said landowners.” For the considerations mentioned, the United States sold and delivered to the company the improvements “as set forth in the announcement of terms and conditions of sale of government-owned improvements at Eberts Field, dated December 10, 1919.”
It was provided in the contract that the company “agrees that it will, at an expense to itself not exceeding the penal sum of the bond hereinafter described, protect and save and hold harmless” the United States “from any and all claims of the owners of any of said lands for and on account of all property damages thereto done or suffered by” the United States, “and to make replacements of improvements on said lands, and for and on account of any obligation of” the United 'States “to remove any buildings, improvements, roads, foundations or other structures placed on said lands by” the United States, “which said claims for property damages or replacements or removals arise out of the provisions of said leases and ratifications.”
Under the terms of the contract performance by the company was to be evidenced by its procuring for the United States valid and complete releases from the owners of the lands of all their claims or by satisfying all judgments recovered by the landowners in suits or other proceedings against the United States or the company in respect to any of the claims. The company agreed to defend such suits or proceedings at its own expense. It was contemplated that the company would dispose of all claims by June 30, .1920, but the United States agreed that the company should have whatever additional time might be required after the expiration of the government’s lease that the United States itself was entitled to under the lease and ratifications thereof by the landowners. It was further expressed in the contract that the intent was “to create and extend to the said landowners a direct cause of action by them against” the Lesser-Goldman Company “for1 and on account of said claims in any court of competent jurisdiction. ****.”
The bond provided that the company would faithfully and fully perform the obligations resting on it as set out in the contract, in the penal sum of $20,000, which sum was stipulated to be the limit of liability both of the company and the surety on the bond for and on account of any and all of the obligations of the company under the provisions of the contract.
On January 15, 1920, Fletcher-Goodrum, in a letter to the company, demanded an immediate settlement of the damages due them and warned it that the damages would be enhanced if the 1920 crop was lost through failure to secure such settlement. On September 27, 1920, the company released possession of the land and so notified the United States.
On May 19, Fletcher-Goodrum instituted this action in the Lonoke Circuit Court against the company and Lynch Oreekmore and H. M. Bennett, agents of the company, and the Lonoke Chamber of Commerce, to recover damages to improvements on their lands in the sum of $10,000, and the sum of $20,000 rent for the year 1920, which they alleged grew out of their contract of lease to McCrary and the several contracts above mentioned.
The company set up that the defendants Creekmore and Bennett were its agents, and that it assumed full responsibility for all their acts. It denied liability, but set up that, if liable at all,' the limit of its liability under the contract was $20,000 to all of the landowners. The answer contained a motion that Williams, Pierson and the road district be made parties plaintiff and required to set up their respective claims. The answer also contained a motion to transfer to the equity court. It also set up that, if liable at all, the company would be entitled to judgment in the same amounts against the chamber of commerce. It prayed that it be dismissed without cost, and, in the alternative, if any judgments were recovered against it by the plaintiffs, it be allowed to recover in the amount of plaintiffs ’ judgments against the chamber of commerce.
The court directed that Williams, Pierson, and the Eoad District No. 4 be made parties plaintiff, which was done. The court overruled the motion to transfer to equity. There was evidence adduced at the trial 'by which it was estimated that the damage, by the United States to Fletcher-Goodrum lands was $24,176.40; to the Williams lands in the sum of $60,130, and to the road district in the sum of $6,000. It was conceded that all the damage done by the United States and the improvements made were' necessary in the use of the field for aeronautical purposes. The court instructed the jury that if they found for the plaintiffs, Fletcher-Goodrum, the amount they would be entitled to recover as damages to the lands could not exceed the sum of $6,561, the amount they specified at the auction sale, with interest from the date of such sale; and that if they found in favor of Williams and Pierson, the amount of their damages would be the sum of $10,000, the amount specified by them on the day of sale, with interest from that date.. (No separate damages were claimed for Pierson). The court instructed the jury that if they found in favor of the road district they could return damages in the sum of $6,000. It was agreed that, if the company were liable, the testimony would show that the road district had sustained damages in the sum of $6,000.
At the request of the plaintiffs, except the road district, the court in substance instructed the jury that if, in the printed announcement of sale, it was stated that the successful bidder would be required to release the government from all claims for damages from owners of tbe land and from all claims for replacement of improvements which the United States was obligated to replace under the provisions of the lease under which it held the land, and that if at the sale some question was raised by the bidders as to the respective amounts of the claims of the landowners, and the officer of the government conducting the sale adjourned the sale until the afternoon in order that such amounts be ascertained, and that such amounts were ascertained and agreed upon by the plaintiffs and were announced to' prospective bidders when the sale was -resumed in the afternoon, and that if it was further announced that the successful bidder would have to pay the amounts of these claims in addition to the amount bid by him, then the company would be liable for the amounts of these claims.
The court also instructed the jury that the road district was not bound by the representation as to the amount of its damages made by the county judge and the road commissioners when the sale was made. The court refused to instruct the jury at the request of the plaintiffs, Williams and Pierson, as follows: “You are instructed that, in the lease from Williams to W. W. Mc-Crary, the lessee, or his assignee, was bound to- replace all improvements in as good condition as they were on August 1, 1917, and that the terms of said lease were not abrogated by the lease from the chamber of commerce to the United States Government, nor by the alleged ratification by said Williams, nor was this duty or liability fixed or limited by the contract of December 15, 1919, between the Lesser-Goldman Cotton Company and the United States Government, and you will find for the plaintiff Williams in such an amount as you may find it would cost Williams to put the place named in the lease to McCrary in the condition it was in on August 1,1917. ’ ’
The company prayed the court for instructions telling the jury in effect that the rights of the plaintiffs to damages depended upon the written contract of December 15,1919, between it and the United States, which was one merely of indemnity as to the claims of the landowners and which imposed no duty at all as to the claim of the road district. The company also ashed the court to instruct the jury to return a verdict in its favor against all of the parties seeking a judgment against it. The court refused these instructions. Exceptions were saved by the respective parties to the ruling of the court in giving and refusing instructions which were contrary to their respective contentions.
The jury returned a verdict in favor of FletcherGoodrum against the company and Lynch Creekmore in the sum of $1,000 for rent of their lands, and against the company in the sum of $6,561 with interest as damages to their lands; in favor of Williams on account of damages to his lands in the sum of $10,816.66, with interest, and in favor of the road district in the sum of $6,000, with interest. The jury returned verdicts in favor of the defendants, Lynch Creekmore and H. M. Bennett, agents, and also in favor of the Lonoke Chamber of Commerce as against all the plaintiffs.
Judgments were rendered against the company and Lynch Creekmore in favor of Fletcher and Good mm for rent in the sum of $2,000, the same being double the amount of the verdict returned by the jury; against the company in favor of Fletcher and Goo drum in the sum of $6,561 with interest thereon from date of the sale; and against the company in favor of Williams in the sum of $10,816.66; and against the company in favor of the road district in the sum of $6,000, from which judgments the appellants duly prosecute this appeal, and all of the appellees except the chamber of commerce prosecute a cross-appeal. Any other necessary facts will be stated as we proceed.
1. The lease of the Fletcher-Goodrum lands was not terminated by cancellation either under the terms of the lease of such lands to McCrary or the lease of the chamber of commerce to the United States which FletcherGoodrum ratified. The notice was by telegram dated November 29, 1919, from the Director of Air Service to the Lonoke Chamber of Commerce, notifying the latter of the cancellation of the lease to take effect December 31, 1919. This telegram was followed by letter of December 1, 1919, confirming the telegram and including notice of the cancellation, with the request that, admission of' the service of such notice be signed by the chamber of commerce and returned as promptly as convenient. Upon receipt of the telegram the president of the chamber of commerce immediately notified the landowners. The landowners verbally acquiesced. On December 3, the Director of Air Service telegraphed the chamber of commerce to disregard the notice of cancellation by previous telegram and letter. The president ofi the chamber of commerce also notified the landowners of the last telegram, and it does not appear that, intervening the first telegram and letter and the receipt of the last telegram, the chamber of commerce had by letter or otherwise notified the Director of Air Service that the notice had been served, nor does it appear that the landowners had acted upon the telegram and letter giving notice of cancellation. The rights of the parties therefore had not been in any manner affected by the notice of cancellation before the same was revoked.
A notice of cancellation of a lease to take effect in the future may be revoked or withdrawn before it has been acted on by the other party to the contract, and in such case the rights of the parties under the contract are the same thereafter as if the notice of cancellation had not been given. This doctrine is supported by the decided preponderance of the authorities in this country. See Wisner v. Richards, 24 Ann. Cas. 1912-D, p. 162, and cases there cited. We are aware that there are respectable authorities which hold that when a valid notice to quit is given by the landlord or tenant, the party to whom it is given is entitled to count upon it, and it cannot be withdrawn without the consent of both parties. See Western Union Tel. Co. v. Pac. Ry. Co. 120 Fed. 362. But, even if we are mistaken in holding that the lease was not terminated by cancellation, still Fleteher-Goodrum would not be entitled to recover double damages for the retention of the lands under § 6557 Crawford & Moses’ Digest. For, under the statute, to entitle the landlord or lessor to double rents after the termination of the lease term,the holding over by the tenant must be done wilfully. The statute is highly penal, must be strictly construed, and cannot be extended by intendment beyond its express terms. A holding over by the tenant under the bona fide belief that he has the right to do so, even though he were mistaken, is not a wilful or contumacious holding under the statute,where the undisputed facts show, as they do here, that there were reasonable grounds for such belief. Belles v. Anderson, 38 Ill. App. 128; Alexander v. Loeb, 230 Ill. 454, 82 N. E. 833; Aull v. Bowling Green Opera House Co., 130 Ky. 789, 114 S. W. 284; Jones v. Taylor, 136 Ky. 39, 123 S. W. 326; Swinfen v. Bacon, 6 H. & N. 846; Barson v. Mulligan, 191 N. Y. 306, 84 N. E. 75.
The case of Driver v. Edrington, 74 Ark. 12, does not contravene the above doctrine, for in that ease there was a holding over by the tenant, after he knew that his term had expired and after he had lawful notice to vacate, simply because it was inconvenient and injurious to his business. The holding over by the tenant in that case was not grounded upon facts which justified an honest belief that he had the right to do so.
2. It will be observed that the original leases from Fleteher-Goodrum and from Williams to McCrary contained this provision: “In case of the removal or destruction of irrigation plant, houses, or fences, the lessee or its assigns shall replace such improvements in as good condition as the same was at the date of this lease contract.” The contract between the appellant and the United States by which the latter sold to the former the “government-owned improvements” expressly makes these leases to McCrary “with all the terms, provisions, conditions and covenants thereof” a part of that con tract. The announcement of the terms and conditions of the sale of the government-owned improvements, in pursuance of which the sale was made and the written contract of sale between, the appellant and the United States entered into, contains' a provision to the effect that the “successful bidder shall release the government from all claims of property damage from owners of the land and any or all claims for replacement of all improvements which the United States is obliged to replace for the property owners under the provisions of the lease by which this land is held.” This written announcement of the terms and conditions of the sale is also expressly made a part of the contract of sale between the appellant and the United States. The contract of sale between the appellant and the United States likewise makes the lease of the chamber of commerce to the United States and the ratifications thereof by the landowners a part of the contract of sale. • The transfer or assignment of the lease from McCrary to the Lonoke Chamber of Commerce shows that it was done “for the use and benefit of -the United States Government.”
Now, the manifest intention of the parties to the contract of sale in making all of the above instruments with all of their terms, conditions, provisions and covenants a part of the contract of sale, was to preserve the rights of the landowners as against the United States Government for and on account of all property damages- to their lands' and all replacements of improvements thereon which the United States Government “may be under obligation to pay and replace and remove pursuant to the provisions of the leases which were taken from the said landowners of said lands by W. W. McCrary.” The purpose of the contract, as clearly expressed therein, was that the appellant should “save and protect and hold harmless” the United States from the claims of the landowners. In other words, as we construe the contract of sale, it bound the appellant to pay any and all claims of the landowners for damages that the United States would have to pay them under the leases. The language of the contract of sale shows that the parties to it at the time of its execution recognized that the landowners had claims for damages against the United States, which the latter would have to pay as a part of the consideration of the sale of the government-owned improvements. Under the original leases to McCrary, he and his assigns were liable to the landowners for all damages to their lands caused by the destruction of improvements or by failure to restore the same in as good condition as they were at the time the leases were executed. Taking the provisions of the contract as a whole, it -cannot be construed as one intending merely to indemnify the government against the claims of the landowners, but a contract by which the appellant assumed payment of these -claims. The contract in terms says that the intent of the provisions “is to create and extend to the landowners a direct cause of action against the said party of the second part” (appellant). If the contract had intended to indemnify the government merely, the above language would not have been used.
While there was no direct assignment of the leases from McCrary to the United States Government, the undisputed testimony shows that the assignment by him to the chamber of commerce was, as we have stated, for the use and benefit of the United -States Government, and, so far as the landowners were concerned, the independent leases executed by the chamber of commerce operated as a transfer or assignment of their title to the United States Government. The undisputed facts show that the taking of the leases, their assignment to the chamber -of commerce, the execution of the leases by the chamber of commerce to the United States Government, and the ratification of these leases by the landowners was all done for the purpose of putting the lease title in the United States, the .United States assuming all the obligations of the lessee under the original leases. This was certainly the interpretation which the officers of the United States Government, entrusted with the duty of executing and carrying out the obligations of the United States under these leases, gave the original leases and the leases of the chamber of commerce and the ratification thereof at the time of the sale of the government-owned property. It was also the interpretation of the landowners at that time. And we believe it was likewise the interpretation of the appellant, as shown by the express provisions of the contract itself, in making all the instruments evidencing any rights growing out of the leases a part of the contract of sale. In the light of all the written instruments and the contract thereunder of the parties thereto, as shown by the undisputed testimony, we are convinced that the appellees were.not strangers to the contract of sale and to the consideration thereof, as contended by learned counsel for appellant. But, on the contrary, the undisputed facts of this record show that by the express terms of the contract the appellees were privies to the extent of their interest with the United States Government. A consideration had moved from the landowners to the United States under the lease contracts, and by the terms of these contracts the United States was liable to them for all damages they had sustained. The United States, by its contract with the appellant, provided that the latter should pay these damages.
The uncontroverted facts of this record bring the case squarely within the doctrine announced by this court in Thomas Mfg. Co. v. Prather, 65 Ark. 27-29, as follows: “Where a promise is made to one upon a sufficient consideration for the benefit of another, the beneficiary may sue the promissor for a breach of his promise.” -As prerequisites of the application of the doctrine, we further said, quoting from the N. Y. Court of Appeals in Vrooman v. Turner, 69 N. Y. 280, “There must be, first, an intent by the promisee to- secure some benefit to the third party; and, second, some privity between the two — the promisee and the party to be benefited — and some ob ligation or duty owing from the former to the latter which would give him a legal or equitable claim to the benefit of the promise.” See also Little Rock Ry. & Elec. Co. v. McDowell, 101 Ark. 223-26; Dickinson v. McCoppin, 121 Ark. 414-18; Ga. State Sav. Assn. v. Dearing, 128 Ark. 149-54; Schmidt v. Griffith, 144 Ark. 8.
3. This brings us to the question of the amounts of damages which the appellees were entitled to recover. The written instruments signed by the respective landowners and those representing Road District No. 4, in which they agreed to release the United States Government and the chamber of commerce in consideration of the amounts set forth in their respective statements, are binding upon them as against the United States, and the appellant, who, under the contract of sale, as we have seen, assumed the liabilities of the United States Government for the damages that the landowners sustained under their respective leases. The United States, the party making the sale, and the appellant, the party purchasing, had the right to rely upon these statements as fixing the amounts of “all damages whatsoever” resulting to the appellees by reason of the occupancy of their lands as an aviation field 'by the United States Government under the terms of the lease contract. The appellees are estopped by their conduct, in executing these agreements and permitting them to be read at the sale before the bidding commenced, from afterward asserting that they sustained greater damages than the sums set forth in these agreements. As the undisputed testimony shows, these agreements were especially executed for the purpose of declaring an amount which would fix the limit of damages beyond which the United States and the purchaser at the sale would not be liable. The county judge and the commissioners were the duly authorized agents representing the road district and had the power to fix the amount of the damages that the district had sustained at the hands of the United States Government in its appropriation of the road of the district. It was agreed that, if the appellant were liable. the testimony would show that the district had sustained damages in the sum of $6,000. But the appellant contended that, if liable, the district should not be allowed to recover in a sum exceeding $2,000, the amount set forth in the written statement of the road district signed by the county judge and the road commissioners and read on the day of sale. The appellant is correct in this contention. The district is estopped by the conduct of its duly authorized agents from claiming a greater amount than was set up.in the written statement as the amount of the damages to the district. The court therefore erred in its instruction telling the jury that the district was entitled to recover in the sum of $6,000.
4. It follows from our construction of the contract of sale between the appellant and the United States, that the appellant was liable to the appellees, except the chamber of commerce, for all damages caused by the United States in its occupancy of their lands. The court therefore ruled correctly in instructing the jury to return a verdict in favor of the chamber of commerce, except as to the rent due Fletcher-Goodrum for the year 1920. (The sum of $720 rent was tendered them by the chamber of commerce and refused). The instructions of the court were correct except in the particulars indicated.
The judgment of the court in favor of Fletehe1"-Goodrum against appellant for rents will be reversed, and judgment will be entered here in their favor against the chamber-of commerce for the sum of $720, with interest from date. The judgment in favor of the road district will be modified by reducing the same to the sum of $2,000, with interest. In all other respects the judgment is correct, and, after being modified as above indicated, it is affirmed. | [
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Woon, J.
One W. C. Rasberry executed to appellant a mortgage in which the property mortgaged was described as “six acres of cotton grown on the John Moore lease.” Rasberry and one John Moore owned an undivided one-half interest on cotton that was grown on twelve acres of land designated as the “John Moore lease.” The S. L. Joseph Mercantile Company, a corporation, and Bertig Bros., a partnership, purchased of Rasberry cotton owned by Rasberry that was grown on the John Moore lease. They purchased the cotton after the appellant had told them that he had a mortgage on Rasberry’s cotton. The appellant instituted separate actions against the appellees to recover of them respec tively the' amounts paid by them to Easberry for the cotton. The causes were consolidated for trial, and by consent of parties were tried by the court sitting as a jury. The court, upon the facts, rendered judgment in favor of the appellees, from which is this appeal.
The mortgage was void because of uncertainty in the description. It furnishes no. data by which it can be ascertained what particular six acres of cotton grown on the John Moore lease of twelve acres was intended. “A mortgage covering crops growing on a certain number of acres in a larger tract, without specifying the particular part intended, is void for uncertainty. ’ ’ 11 Cor. Jur. 470; Dodds v. Neal, 41 Ark. 70; Krone & Co. v. Phelps, 43 Ark. 350.
As between the appellant and the appellees, the latter only had to take notice of the description in the mortgage that was on file in the office of the circuit clerk of Greene County. Krone & Co. v. Phelps, supra. The judgment is correct, and it is therefore affirmed. | [
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Wood, J.
R. C. Rose rented to J. A. Walker a certain tract of land in Mississippi County, Arkansas, for the year 1919. On February 16, 1919, Walker executed Ms note to the Bank of Osceola (hereafter called bank) for the sum of $1,600, which was due November 15, 1915. Walker and Rose also executed a note to the bank on April 12, 1919, in the sum of $400, payable November 15, 1919, and Walker, on the 17th of September, executed a note to the bank in the sum of $50. The note for $1,600 was secured by a mortgage on certain personal property and the crops to be grown by Walker on the lands rented from Rose. At the close of the crop season Walker sold two bales of the cotton raised on the land to J. R. Miller for $351.12, and to the Hale Bros, other cotton grown on the lands for the sum of $1,455.95. The purchasers gave Walker checks for the respective amounts of the purchase price of the cotton, and he deposited these checks to his individual credit in the bank. Walker also shipped seven bales of the cotton to the J. T. Fargason Company, cotton factors at Memphis, Tennessee, which it sold for the sum of $311.11, for which Walker 'drew drafts and deposited the same in the bank to Ms credit.
This action was instituted by Rose against Walker, Miller, Hale Bros, and the bank to enforce a landlord’s lien for rents and supplies amounting in the aggregate to the sum of $1,626.76. Rose prayed judgment against Walker for the amount alleged to be due him for rents and supplies, and alleged that the bank had received proceeds from the sale of cotton on which he had a lien for more than the amount due by Walker to Rose, and that the bank at the time it received the proceeds had knowledge that same were from the sale of cotton on wMch Rose had a lien. He also alleged that Miller and Hale Bros, had knowledge of the fact that Rose had a lien on the same for rents and supplies at the time they purchased the cotton from Walker.
The bank and Walker answered, denying the allegations of the complaint and denying liability. They set up also the mortgage of Walker to the bank, and that the amount advanced by the bank to Walker under the mort gage was used by Walker in making Ms crops. They further set up that the bank had advanced to Walker the sum of $400 upon a note which was endorsed by Rose, for wMch he was liable to the bank and estopped from claiming the bank was indebted to him for such amount.
Miller and Hale Bros, filed separate answers, in which they denied the allegations of the complaint, but set up that, if they purchased the cotton from Walker, they did so in the usual course of business and had no notice that Rose had any lien on the same. They therefore denied that they were indebted to Rose in any amount and prayed that the complaint as to them be dismissed. They also set up that the bank received the proceeds of the cotton purchased by them'from Walker, and prayed that, in the event the court should find against them, or either of them, in favor of Rose, they in turn should have judgment against the bank.
Walker made default. The court found that he was indebted to Rose in the sum of $1,468.04, made up of the following sums:
Cash rent..............................................:.....................................$200.00
1/4 of the cotton............................................... 485.00
1/4 rebate.................................................................................... 45.74
Supplies................................................................................... 113.85
Briekey account...................................’............................... 223.35
Bank of Osceola..................................................................... 400.00
The court also found that the bank had furnished Walker the sum of $400 evidenced by a note on wMch Rose was the surety, and that Rose had not paid tMs note. The court further found that Walker had sold to Miller cotton raised on Rose’s land during the year 1919 in the sum of $351.12; and had sold cotton to Hale Bros, for the sum of $1,455.94; that these purchases were made with full knowledge of the fact that plaintiff had a lien on the cotton for rents and supplies; that the proceeds were deposited by Walker in the bank, and that the bank had full knowledge that Rose had a lien on the proceeds for his rents and supplies; that the bank converted to its own nse a part of such proceeds amounting to more than Walker’s indebtedness to Rose. The court further found that neither Miller nor Hale Bros: were innocent purchasers, and that the bank was liable as for conversion. The court gave the bank credit for the sum of $400, the amount of Walker’s note on which Rose was surety. A decree was rendered in favor of Rose against Walker, the bank, and Hale Bros, in the sum of $1,068.04, with six per cent, interest thereon from December 1, 1919, and against Miller in the sum of $351.12. The court also decreed that Walker was primarily liable, and that Rose should proceed first against Walker and then against the bank before issuing execution against Hale Bros, and J. R. Miller, whose liability it adjudged to be inferior to that of the bank. From that decree is this appeal.
1. The court found that the appellee was entitled to a lien on the crops for the item of $223.35, the amount paid by him to Brickey Mercantile Company for supplies furnished Walker. (The undisputed proof shows that this item should be $233.35). E. E. Driver, the cashier of the bank, testified, among other things, that when Walker executed the note and mortgage to the bank, he showed Driver the lease contract agreement he had with Rose for the rent of the land. The cashier therefore knew that Walker was the tenant of Rose. The bank took the mortgage upon Walker’s chattels and the crops to be grown on Rose’s land and made advances to him under that mortgage. Rose testified that he talked with one of the directors of the bank, and that he understood from him that the bank, in addition to what Walker already owed it, furnished Walker about $600; that amount was not sufficient to complete the cultivation of Walker’s crops. The bank refused to furnish Walker any more money. The appellee became responsible to the Brickey Mercantile Company in the sum of $335.35, advances made by it of money and supplies and used by Walker in the cultivation of his crops on appellee’s land. The appellee paid this amount to the Brickey Mercantile Company.
The facts justified a finding that the money and supplies furnished throug'h the Brickey Mercantile Company were in reality furnished by the appellee. The statute, in such cases, expressly gives the landlord “preference over any mortgage or other conveyance of such crop made by such tenant.” Sec. 6890, C. & M. Digest. This is not a case of a landlord becoming a mere surety for his tenant, as was the case in Coffman & Wilson v. Underwood, 83 Ark. 118, upon which counsel for appellants relies; but the facts here warrant the conclusion that appellee himself was responsible primarily to the Brickey Mercantile Company for the advances and supplies made by it to Walker to make his crop.
In Forster v. Bradney, 143 Ark. 320, we held: “A landlord has a lien on his tenant’s crop for the purchase price of supplies, the payment of which he had guaranteed, though he had not actually paid for them.” Under the facts it is precisely the same as if the appellee had furnished the money and supplies himself. Under such a state of facts no contractual rights of a mortgagee under a mortgage executed to him by a tenant on crops can intervene to deprive a landlord of his lien under the above statute. Where the landlord, through another, furnishes the tenant supplies to make the crop, it is the same as if he furnished them directly, and he brings himself by such proof within the terms of the above statute.
2. It is not contended by the appellants that Miller and Hale Bros, were innocent purchasers. It could serve no useful purpose therefore to set forth and discuss in detail the testimony bearing upon this issue. Let it suffice to say that, while the testimony of one of the Hales and Miller was to the effect that when they bought the cotton from Walker they did not know that Walker was renting from Rose and that the cotton was grown on Rose’s land, that they did not know that Rose had a claim on the cotton until after they bought the same; nevertheless they admitted that they made no inquiry of Walker as to where the cotton was grown or whether there was any outstanding landlord’s lien against the same. They purchased the cotton by sample and from ginner’s receipts, and made no further investigation. They were cotton buyers of experience and were buying cotton at Osceola, where Rose resided, and in the Osceola district where the land was situated. Therefore the court correctly ruled that Miller and Hale Bros, were not innocent purchasers, and the decree against them in favor of the appellee for the value of the cotton purchased by them from Walker was correct. Hunter v. Matthews, 67 Ark. 364; Noe v. Layton, 69 Ark. 551; Jacobson v. Atkins, 103 Ark. 91; see also, Lynch v. Mackey, 151 Ark. 145.
3. The court found that the bank knew that the cotton was subject to a landlord’s lien, and that in effect Walker had no right to the funds deposited; that he was, to the extent of appellee’s lien, a trustee of such funds. These findings of the court are supported by a decided preponderance of the evidence. The cashier of the bank himself testified that, after Walker made the contract to move on Rose’s land, the bank took a mortgage upon his chattels and the crops to be made on that land. He further testified that when Walker drew drafts on the Fargason Company, or sold cotton to Hale Bros, and Miller, and the checks came to the bank, witness presumed that they were the proceeds of the sales of the cotton raised by Walker that year. When the checks of Miller and Hale Bros, were brought to the bank, and Walker gave the bank checks on his account to pay the mortgage to the bank, witness believed that they were the proceeds of the cotton that he had raised that year on Rose’s land. The bank got practieallv all of the proceeds of the checks of Hale Bros, and Miller. This witness further testified as follows: “It was mv fault that Walker did ship the cotton. I instructed him to ship the cotton. I know that some of it was shipped. I know that J. T. Fargason Co. was shipped several bales. Mr. Walker drew various drafts on J. T. Fargason Co., to whom he had shipped cotton, and we received those drafts. Thé hank had nothing to do with Walker’s shipment (to Fargason Co.) more than to advise him that we thought it was the best thing' to do. We accepted the drafts that he drew and gave him credit on his deposit for the same. The shipping of the cotton was left to Mr. Walker. I would not have been willing for him to ship it to Rose’s credit.”
The testimony further shows that, after the checks and the drafts were deposited to Walker’s credit in the bank, he then drew checks on his account in favor of the bank to pay his preexisting indebtedness to the bank. The above testimony comes from the bank’s own agents, its cashier and assistant cashier. Such being their testimony, the court was clearly correct in the above findings. When .the bank, through its cashier, advised Walker to ship cotton to a cotton factor out of the State, the cashier knowing at the time that the appellee had a lien on such cotton for rents and supplies, and when the cashier received from Walker a draft on the factor for the proceeds of such cotton and used such drafts in paying Walker’s indebtedness, the bank by these acts converted to its own use the proceeds of the cotton with full knowledge of the fact that the appellee had a lien upon such cotton, or its proceeds, for rents and supplies. The decree of the court holding the bank liable to the appellee for such proceeds under the circumstances was correct as disclosed by the above proof. Having knowledge of the appellee’s lien, it must be held that the conduct of the bank was tantamount to a destruction by it of such lien. Merchants’ & Planters’ Bank v. Meyer, 56 Ark. 499, 505; Carroll County Bank v. Rhodes. 69 Ark. 43-48; Boone County Bank v. Byrum, 68 Ark. 71-74; Blanton v. First National Bank of Forrest City, 136 Ark. 441.
It follows from what we have alreadv said that the court ruled correctly in holding that the note of $400 executed by Walker and Rose to the bank should be considered as paid and canceled as of the date of the conversion by the bank of the proceeds of sales of the cotton upon which the appellee had a lien. The undisputed testimony shows that, by a misprision, the Brickey item which entered into the decree should have been $233.35 instead of $223.35 as found by the court.
We therefore treat the decree as if it had been corrected by stipulation of the parties in the trial court and rendered for the sum of $1,078.04. The decree for this amount is in all things correct, and hence it is affirmed. | [
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OPINION OF THE COURT. This is a motion for a writ of error, with a supersede-as to a judgment obtained by McLain against Johnson in the Pulaski circuit court. It appears from the record of the proceedings in the court below, that Johnson, to an action of debt brought against him by McLain, appeared at the May term of said circuit court, and filed three pleas of payment. In two of the pleas he avers that he paid the debt one day before it became due, and in the third plea he avers that he paid it on the day it became due. An issue was made up and tried by a jury, who returned a verdict for the plaintiff. The defendant in the court below then moved the court to arrest the judgment on the following grounds: first, that the issue was immaterial; secondly, that the time from which the interest is to be paid, is not expressed in the verdict; thirdly, that the whole proceeding is irregular, informal, and illegal. The court sustained the motion and arrested the judgment We cannot see the ground upon which the court arrested the judgment. The issue was not immaterial, for there was at least one good plea filed, upon which issue was taken, namely, the plea of solvit ad diem. From an inspection of the record, it is manifest that this plea was filed at the May term, before the jury rendered their verdict, and no parol averment can be received to contradict the record.
The second ground is equally untenable, for we are clearly of opinion that the verdict of the jury is substantially good. They find for the plaintiff the debt in the declaration, with interest and costs. It is evident that the jury intend to find interest from the time the note became due. After arresting the judgment, the court awarded a repleader, and at the subsequent term of the court the following proceedings took place: “This day, appeared the parties by their attorneys, and the plaintiff’s attorney moved the court for a judgment by default, which motion the court overruled, whereupon the plaintiff’s attorney withdrew his demurrer filed to the defendant’s plea, and moved the court to strike out the plea as for want of a plea, which motion the court sustained, and proceeded to render judgment for the plaintiff for the debt in the declaration, and the interest then due in damages and costs of the suit.” We are here again at a loss to perceive the ground on which the court rejected the plea of the defendant But as the plea does not appear on the record, we are bound to presume that it was not such an one as the court should have received. But, admitting the court to have erred in the latter case in rejecting the defendant’s plea, we are still of opinion it can have no influence in the decision of this case. The court at the previous term should have rendered judgment on the verdict of the jury, and not have arrested the judgment; by rendering judgment at the subsequent term, that only was done which ought to have been done at the previous term.
It is not material to the ends of justice whether the acts of the court proceed from good or bad reasons. The judgment, it is true, is erroneous in not allowing to McLain interest on the debt at the rate of ten per cent, per annum from the time the note became due until paid, but only giving interest up to the time of rendering the judgment. But this is an error of which the defendant in the court below has no right to complain. Motion overruled. | [
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JOHNSON, Judge.
This is an action- of indebitatus assumpsit, brought by [Jacob] Buzzard against [Massaek H.] Janes, in the Lafayette circuit court, for the work and labor of six negroes, slaves, the servants of the plaintiff. The cause was tried on the general issue, and a judgment and verdict rendered for the plaintiff below for the sum of one hundred and eight dollars and costs of suit, to reverse which this writ of error is prosecuted.
The first assignment of error questions the sufficieiicy of the declaration, in not setting outany consideration forthe promises therein mentioned, and in not averring that the plaintiff performed the work and labor either by himself or his servants. The plaintiff, in his declaration, avers, that “the defendant was indebted to the plaintiff in the sum of three hundred dollars, for work and labor of certain negro slaves, servants of the plaintiff, namely, one negro named Jacob, and before that time done and performed for the defendant, and at his special instance and request.” The plaintiff in the court below alleges that the work and labor was done and performed by his servants at the request of the defendant, and there can surely be no doubt that he has a right to recover for the work and labor of his servants, as though they were his slaves for life.
The next error assigned is, that the court permitted improper testimony to go to the jury. From a bill of exceptions filed in this cause, it appears that the plaintiff in the court below produced the record of a suit In the Lafayette circuit court by the plaintiff in error, against the defendant in error and others, and offered to read as evidence a part of it, from which it appeared that Janes had, by a decretal order of the Lafayette circuit court, caused the negroes in this suit •to be taken from the possession of Buzzard and delivered to him. and at a subsequent term of the court, the negroes were again ordered by the court to be restored to Buzzard. To this evidence, Janes, by his counsel, objected; but the court overruled his objection, and permitted the evidence to go to the jury.
We can see no error in the decision of the court in permitting the evidence to go to the jury. The plaintiff and defendant were parties to the suit, the record of which was adduced as evidence, and if it conduced to prove any fact material to the issue then before the court, either party had a right to use it. That it conduced to prove, and did establish beyond controversy, the length of time Janes had possession of the negroes, cannot admit of a doubt. This was a material inquiry, and on that ground the record was properly received as evidence.
The next assignment of error is, “that the court rejected proper testimony when offered by the defendant.” The first evidence offered by Janes, and rejected by the court, is as follows: Janes, by his counsel, asked a witness, “if the negro Jacob was taken subject to the condition that if he ran away and could not be returned at the expiration of three or six months, the person taking him should be liable to pay the value of him, what would be the value of his services per month?” The court, in our judgment, correctly rejected the testimony. If Janes, by obtaining, as he did, the possession of the negro of Buzzard, incurred the responsibility of paying his value in the event of his running away, it was a liability voluntarily assumed, and cannot diminish the claim of Buzzard for the value of his services, especially when it does not appear that the negro did in fact run away. The remaining evidence rejected by the court is the following: The plaintiff in the court below introduced Morris May as a witness, and proved by him that he (May) sold and delivered the negro to the plaintiff, and that he (the witness) purchased the negro of one Samuel Famey. The defendant then asked the witness by what title he held the ne-groes, and what consideration he gave for them; to which the plaintiff objected, and the court sustained the objection. We think the evidence was inadmissible. The witness had already answered that he held them by the title of purchase from Famey, and it was equally valid whether it was made by a parol agreement or by a bill of sale, and" it was not material whether he gave the full value for them or not.
The counsel for the plaintiff in error has insisted that the present action is misconceived, and that from the facts- disclosed by the defendant in error on the trial of the cause, he was not entitled to recover in this form of action. A conclusive answer to the argument is, that all the facts of this case, as they were detailed in evidence to the court below, are not presented to this court. The bills of exception do not state that all the evidence given in the case is contained in them. Admitting, however, that it does appear from the evidence spread upon the record, that Janes obtained posses sion of Buzzard’s negroes by an- unjust proceeding in a suit in chancery, still we think that the present action is maintainable by Buzzard. It is no doubt true that Buzzard might have brpught an action founded upon the tortious acts of Janes, and recovered damages for the wrongful taking, as well as the illegal detention of his servants.- But it was. competent for him, and he had the election to waive the tort- and to bring an action ex .quasi contractu. There is abundant authority to sustain this position, in the case of Stockett v. Watkins, 2 Gill & J. 326, it was held that where one gets possession of chattels tortiously, and converts them into money, the real owner may waive the tort and sue in assumpsit for the proceeds; and that action has been sustained in some instances where the trespasser has not parted with the chattels. Where they have been returned to the owner, he may still, waive the tort, and then recover their value for the time of their detention in assumpsit. 1 Saund. Pl. & Ev. 133; 1 Chit. Pl. 94; 1 Mo. 643. Judgment affirmed. | [
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KAREN R. BAKER, Justice.
liOn September 5, 2014, Petitioners, Brian Richardson and Mary Dillard, acting individually and on behalf of the ballot-question committee Citizens for Local Rights (“Richardson”) filed this original action challenging the timeliness and sufficiency of an initiative petition for a proposed constitutional amendment with the popular name of “The Arkansas Alcoholic Beverage Amendment” also known as “Issue No. 4” certified by the Respondent, Mark Martin, in his official capacity as Arkansas Secretary of State, for the November 4, 2014 general-election ballot. The intervenors, Linda Bowlin and J. Ross Jones, individually and on behalf of Let Arkansas Decide (“Bowlin”) are the members of a ballot-lquestiona committee and the sponsor of the proposed constitutional amendment.
The procedural history of this matter is as follows. On July 7, 2014, pursuant to Amendment 7 of the Arkansas Constitution, Bowlin submitted an initiative petition with Martin to place the measure on the November 4, 2014 general-election ballot. On July 18, 2014, Martin notified Bowlin that the petition did not meet the signature requirement of article 5, § 1 of the Arkansas Constitution, and pursuant to art. 5, § 1, Bowlin was given an additional thirty days for correction or amendment. On August 15, 2014, Bowlin filed additional petitions with signatures and on August 21, 2014, pursuant to Ark.Code Ann. § 7-5-204 (Repl.2011), Martin certified the amendment as Issue No. 4 to the County Boards of Elections Commissioners. On August 29, 2014, Martin declared that the petition had met the art. 5, § 1 signature requirements to be placed on the November 4, 2014 general-election ballot.
On September 5, 2014, Richardson filed this original action and motions for expedited scheduling order, consecutive briefing, and oral argument. On September 8, 2014, Bowlin filed her motion to intervene. On September 9, 2014, Martin filed his response to the original-action complaint and responses to the motions for expedited scheduling order, expedited briefing, and oral argument. On September 10, 2014, we granted Bowlin’s motion to intervene and also granted Richardson’s motion for expedited scheduling order, consecutive briefing, and oral argument. Finally, on September 25, 2014, Martin filed a motion to strike the affidavit of J. Kevin Watkins filed by Richardson. On October 2, 2014, we granted Martin’s motion to strike the affidavit, and on October 8, 2014, we denied IsRichardson’s motion for reconsideration striking the affidavit. The parties timely filed simultaneous briefs and replies, and the matter is properly now before this court. .
This court has original, jurisdiction of this case pursuant to Ark. Sup.Ct. R. 6-5(a) (2014). Rule 6-5(a) provides that this court has original jurisdiction in “extraordinary actions required by law, such as suits attacking the validity of statewide petitions filed under Amendment 7 of the Arkansas Constitution.” Amendment 7 to the Constitution is codified in article 5, § 1, of the Arkansas Constitution and is referred to as Amendment 7. Ark. Const, art. 5, § 1, amended by amend. 7.
Richardson presents two issues for review: (1) the timeliness of the petition and (2) the legal sufficiency of the ballot title of “The Arkansas Alcoholic Beverage Amendment.”
I. Timeliness of the Petition
The first issue before the court is whether the petition was timely filed. It is undisputed that the petition was filed on July 7, 2014. Richardson asserts that the petition did not meet the timeliness requirements of Amendment 7 because it was not filed four months before the election, more specifically by July 4, 2014, and therefore the petition was untimely.
We review questions of constitutional construction de novo. See Wilson v. Weiss, 370 Ark. 205, 258 S.W.3d 351 (2007). When interpreting the constitution, our task is to read the laws as they are written and interpret them in accordance with established principles of constitutional construction. Brewer v. Fergus, 348 Ark. 577, 79 S.W.3d 831 (2002). Language of a constitutional provision that is plain and unambiguous must be given its obvious and [4common meaning. Proctor v. Daniels, 2010 Ark. 206, 392 S.W.3d 360. Neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision. Id. Further, the Arkansas Constitution must be considered as a whole, and every provision must be read in light of other provisions relating to the same subject matter. Forrester v. Daniels, 2010 Ark. 397, 373 S.W.3d 871. Finally, Amendment 7 must be liberally construed in order to effectuate its purposes. Porter v. McCuen, 310 Ark. 674, 839 S.W.2d 521 (1992).
With these standards in mind, we turn to the applicable constitutional provisions. Amendment 7 provides in pertinent part:
Amendment 7. Initiative and Referendum
The legislative power of the people of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives, but the people reserve to themselves the power to propose legislative measures, laws and amendments to the Constitution, and to enact or reject the same at the polls independent of the General Assembly; and also reserve the power, at their own option to approve or reject at the polls any entire act or any item of an appropriation bill.
Initiative. The first power reserved by the people is the initiative.... Initiative petitions for state-wide measures shall be filed with the Secretary of State not less than four months before the election at which they are to be voted upon.
Self-Executing. This section shall be self-executing, and all its provisions shall be treated as mandatory, but laws may be enacted to facilitate its operation. No legislation shall be enacted to restrict, hamper or impair the exercise of the rights herein reserved to the people. Enacting Clause .... In submitting measures to the people, the Secretary of State and all other officials shall be guided by the general election laws or municipal laws as the case may be until additional legislation is provided therefor.
It;Id. (emphasis added).
The plain language of Amendment 7 demonstrates that the petition shall be filed not less than four months before the election, the requirements for filing are mandatory, and laws may- be enacted to facilitate the operation of Amendment 7. Further, the plain language of Amendment 7 provides that no legislation shall be enacted to restrict, hamper or impair the exercise of the rights reserved to the people. Finally, the plain language of Amendment 7 provides that the Secretary of State shall be guided by the general-election laws or municipal laws, as the case may be, until additional legislation is provided therefor.
Next, Amendment 51, § 9(1), of the Arkansas Constitution instructs that “If an election law deadline occurs on a Saturday, Sunday, or legal holiday, the deadline shall be the next day which is not a Saturday, Sunday, or legal holiday.”
Pursuant to Amendment 7, we now turn to the laws that have been enacted to facilitate Amendment 7 and general election laws. First, Ark.Code Ann. § 1-5-101(a)(5)(Repl.2008) declares July 4th, Independence Day, a state holiday. Second, Ark.Code Ann. § l-5-102(a) (Supp.2013) provides in pertinent part:
(a) All state offices shall be closed on all days declared to be legal holidays under the laws of this state, and all persons employed thereby shall not be required to work on legal holidays.
Third, Ark.Code Ann. § 7-1-108, “Election Law Deadlines” (Repl.2011), contains the identical language discussed above from Amendment 51, § 9(1): “If an election law deadline occurs on a Saturday, Sunday, or legal holiday, the deadline shall be the next day which is not |fia Saturday, Sunday, or legal holiday.”
In reviewing the plain language of the constitutional provision at issue, and the constitution as a whole, and reading it in the light of other provisions relating to the same subject matter, we may determine what “not less than four months” means pursuant to Amendment 7 by considering Amendment 51 and the statutes enacted to facilitate its operation, including Ark.Code Ann. § l-5-101(a)(5), Ark.Code Ann. § 1-5-102(a), and Ark.Code Ann. § 7-1-108. See Forrester, 2010 Ark. 897, 878 S.W.3d 871. From our review, it is clear that the election deadline at issue occurred on a legal holiday, July 4, 2014. Therefore, the election-law deadline must be the next day which is not a Saturday, Sunday, or legal holiday. Here, the deadline was July 7th, 2014. To compute otherwise would restrict Bowlin’s rights which is prohibited by our Constitution. Accordingly, we hold that the petition was timely filed on July 7, 2014.
II. Legal Sufficiency of the Ballot Title
The second issue before the court is whether the ballot title at issue, “The Arkansas Alcoholic Beverage Amendment,” is legally sufficient. Richardson asserts that the ballot title fails to convey to the voters an intelligible scope and import of the proposed amendment. |7The ballot title is as follows:
Ballot Title
A PROPOSED AMENDMENT TO THE ARKANSAS Constitution to provide that, effective JULY 1, 2015, THE manufacture, SALE, DIStribution and transportation of intoxicating liquors is lawful within the en TIRE GEOGRAPHIC AREA OF EACH AND EVERY COUNTY OF THIS STATE; THAT “INTOXICATING liquors” is defined for purposes OF THE AMENDMENT AS ANY BEVERAGE CONTAINING MORE THAN ONE-HALF OF ONE PERCENT (0.5%) OF ALCOHOL BY WEIGHT; THAT THE manufacture, SALE, DISTRIBUTION AND TRANSPORTATION OF INTOXICATING LIQUORS MAY BE REGULATED, BUT NOT PROHIBITED, BY the General Assembly; and that all LAWS WHICH CONFLICT WITH THE AMENDMENT, INCLUDING LAWS PROVIDING FOR A LOCAL OPTION ELECTION (WET-DRY ELECTION) TO DETERMINE WHETHER INTOXICATING LIQUORS MAY BE SOLD OR NOT SOLD, ARE REPEALED TO THE EXTENT THAT THEY CONFLICT WITH THE AMENDMENT.
With regard to the legal sufficiency of ballot titles, we have explained,
Our decisions upon the sufficiency of ballot titles have been so numerous that the governing principles are perfectly familiar. On the one hand, it is not required that the ballot title contain a synopsis of the amendment or statute. It is sufficient for the title to be complete enough to convey an intelligible idea of the scope and import of the proposed law. We have recognized the impossibility of preparing a ballot title that would suit every one. Yet, on the other hand, the ballot title must be free from any misleading tendency, whether of amplification, of omission, or of fallacy, and it must not be tinged with partisan coloring.
Bradley v. Hall, 220 Ark. 925, 927, 251 S.W.2d 470, 471 (1952) (internal citations omitted).
The applicable standard for re-r view of ballot-title cases requires that “[bjallot titles must include an impartial summary of the proposed amendment that will give voters a fair understanding of the issues presented and of the scope and significance of the proposed changes in the law.” Parker v. Priest, 326 Ark. 123, 129, 930 S.W.2d 322, 325 (1996). The ballot title must be (1) intelligible, (2) honest, and (3) impartial. Ward v. Priest, 350 Ark. 346, 345, 86 S.W.3d 884, 891 (2002). “However, this court is neither to interpret a proposed amendment nor discuss its merits or faults.” Id. at 359, 86 S.W.3d at 891 (internal citations omitted). The ballot title is sufficient if it “informs the voters with such clarity that they can cast their ballot with a fair understanding of the issue presented.” Ferstl v. McCuen, 296 Ark. 504, 509, 758 S.W.2d 398, 400 (1988) (internal citations omitted).
In addition, when reviewing a challenge to the ballot title, the court recognizes that Amendment 7 of article 5, § 1 “places the burden upon the party challenging the ballot title to prove that it is misleading or insufficient.” Cox v. Daniels, 374 Ark. 437, 444, 288 S.W.3d 591, 595(2008) (internal citations omitted). Finally, we liberally construe Amendment 7 in determining the sufficiency of ballot titles. Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980).
Applying these standards, we will review Richardson’s two challenges to the ballot title.
A. Liquor Stores Located Within 1,000 Feet of Schools or Churches
First, Richardson asserts that the ballot title is insufficient and misleading because the voters will not understand the impact of the amendment on the legality of liquor stores being located within 1,000 feet of any church or school. Richardson contends that the title fails to make clear to voters that the statutory prohibition on new liquor stores being located near churches or schools will be abolished, specifically Arkansas Code Annotated § 3-4-206(b) (Repl.2008). Further, Richardson asserts that the disclosure in the ballot title, “will repeal ^inconsistent laws,” focuses on repealing wet-dry election laws and directs the voters’ attention away from the subject singling out the wet-dry election. In sum, Richardson asserts that the ballot title is legally insufficient because voters will not understand that the prohibition on new liquor stores located within 1,000 feet of a school or a church will be repealed and location alone will never be sufficient to prevent a liquor store from being opened near a church or school.
The language of the ballot title states: “all laws which conflict with the amendment, INCLUDING LAWS PROVIDING FOR A LOCAL OPTION ELECTION (WET-DRY ELECTION) TO DETERMINE WHETHER INTOXICATING LIQUORS MAY BE SOLD OR NOT SOLD, ARE REPEALED TO THE EXTENT THAT THEY CONFLICT WITH THE AMENDMENT.” Here, after reviewing the ballot title, we conclude that it informs the voters in an intelligible, honest, and impartial manner that all laws which are in conflict will be repealed. This court has held that it is not necessary that a ballot title include every possible consequence or impact of a proposed measure. In Ferstl, this court stated unequivocally: “Certainly not every detail of an amendment or how it will work in every situation can be revealed in the name and title. It is not possible to do so.” 296 Ark. 504, 510, 758 S.W.2d 398, 401; see also Cox v. Martin, 2012 Ark. 352, 423 S.W.3d 75.
With regard to location of where liquor may be sold, the ballot title states: “the MANUFACTURE, SALE, DISTRIBUTION AND TRANSPORTATION OF INTOXICATING LIQUORS IS LAWFUL WITHIN THE ENTIRE GEOGRAPHIC AREA OF EACH AND EVERY COUNTY OF THIS linSTATE.” Here, the ballot title clearly instructs the voter on the location where the alcohol can be sold: each and every county of the state of Arkansas. We hold that the ballot title is sufficient under our law.
Finally, we note that the parties take issue with whether the existing laws regarding the distance liquor may be sold from schools and churches are “regulations” or “prohibitions” because the amendment will allow the General Assembly to regulate but not prohibit. We need not address this argument because it does not address the sufficiency of the title of the ballot before us; rather, it is directed at the implementation. See Ferstl, 296 Ark. at 510, 758 S.W.2d at 401 (“It is not our function in the present litigation to interpret the amendment or explain how it is to be implemented.” Neither is it our purpose in this opinion to discuss the proposal’s merits- or its faults. It is rather our function to see that the popular name and ballot title are a fair and honest means of presenting this measure to the people for their consideration. We must simply determine whether the sponsors of the proposed amendment have complied with the law, and whether the popular name and ballot title fairly represent the issue which will be presented to the electors.).
B. The Voters Will Not Understand that They Will Lose Their Right to Vote On Whether to Allow the On-Premises Consumption of Mixed Drinks
Richardson also contends that the ballot title at issue is legally insufficient because it fails to inform the voters that the right to a referendum election on the sale of mixed drinks will be lost if the amendment is adopted. Richardson asserts that currently, a business located in a wet county cannot necessarily sell mixed drinks. Rather, pursuant to Ark.Code Ann. In §§ 3-9-203 and 221 (Supp.2013), he contends that a separate referendum election is required in order to approve on-premises consumption. Therefore, Richardson asserts that the failure to inform the voters of this specific issue renders the ballot title legally insufficient.
Here, the ballot title states:
[T] HAT “INTOXICATING LIQUORS” IS DEFINED FOR PURPOSES OF THE AMENDMENT AS ANY BEVERAGE CONTAINING MORE THAN ONE-HALF OF ONE PERCENT (0.5%) OF ALCOHOL BY WEIGHT; THAT THE MANUFACTURE, SALE, DISTRIBUTION AND TRANSPORTATION OF INTOXICATING LIQUORS MAY BE REGULATED, BUT NOT PROHIBITED, BY THE GENERAL ASSEMBLY; AND THAT ALL LAWS WHICH CONFLICT WITH THE AMENDMENT, INCLUDING LAWS PROVIDING FOR A LOCAL OPTION ELECTION (WET-DRY ELECTION) TO DETERMINE WHETHER INTOXICATING LIQUORS MAY BE SOLD OR NOT SOLD, ARE REPEALED TO THE EXTENT THAT THEY CONFLICT WITH THE AMENDMENT.
Again, the title need not include every detail from the Act. In May v. Daniels, 359 Ark. 100, 111, 194 S.W.3d 771, 780 (2004), we held that “it is not necessary that a ballot title include every possible consequence or impact of a proposed measure.” “Certainly not every detail of an amendment or how it will work in every situation can be revealed in the name and title. It is not possible to do so.” Ferstl, 296 Ark. at 510, 758 S.W.2d at 401. More recently, this court has reiterated: “The [ballot] title is not required to be perfect, nor is it reasonable to expect the title to cover or anticipate every possible legal argument the proposed measure might evoke.” May, 359 Ark. at 111, 194 S.W.3d at 780 (internal citations omitted). Here, the ballot title gives the voter a fair understanding of intoxicating liquors and specifically defines the intoxicating liquors in a manner that is clear to encompass mixed drinks. Further, the amendment makes clear to voters that alcohol may be sold anywhere in the State, laws |iain conflict are repealed, and regulations by the General Assembly are permitted. Thus, Richardson has not met his burden of proving that the ballot title is insufficient.
We conclude that while inside the voting booth, the voters will be able to reach an intelligent and informed decision for or against “The Arkansas Alcoholic Beverage Amendment” and understand the consequences of his or her vote based on the ballot title. Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000).
The mandate herein will issue immediately. No petition for rehearing will be entertained by the court.
Petition denied.
CORBIN and DANIELSON, JJ., concur.
. While the concurring opinion states that “Ark.Code Ann. §7-1-108 (Repl.2011) ... alone ... controls, rather than Ark. Const. Amendment 51, § 9(1), that pertains to voter registration,” we disagree. We have repeatedly held that “the Arkansas Constitution must be considered as a whole, and every provision must be read in light of other provisions relating to the same subject matter.” Forrester, 2010 Ark. 397, at 7, 373 S.W.3d 871, 875. Here, the plain language of Amendment 51, § 9(1) specifically speaks to "election law deadline[s].” | [
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KENNETH S. HIXSON, Judge.
|, Appellant George Willis brought a workers’ compensation claim against ap-pellee Great Dane Trailers, alleging that he sustained a compensable aggravation injury to his left knee while working for the appellee on August 9, 2012. The Workers’ Compensation Commission denied compensability, finding that Mr. Willis failed to prove an aggravation of a preexisting condition, and also failed to support his claim with new objective medical findings. Mr. Willis now appeals from the Commission’s decision, arguing that the Commission’s decision denying com-pensability was not supported by substantial evidence. We affirm.
A claimant has the burden of proving the compensability of his claim by a preponderance of the evidence. Ayers v. City of Ashdown, 2014 Ark. App. 270, 2014 WL 1758906. To prove the occurrence of a specific-incident compensable injury, the claimant must establish by a | preponderance of the evidence (1) that an injury occurred arising out of and in the scope of employment; (2) that the injury caused internal or external harm to the body which required medical services or resulted in disability or death; (3) that the injury is established by medical evidence supported by objective findings; and (4) that the injury was caused by a specific incident and is identifiable by time and place of occurrence. Ark.Code Ann. § 11-9-102(4)(A)(i) (Repl.2012); Pafford Med. Billing Servs., Inc. v. Smith, 2011 Ark. App. 180, 381 S.W.3d 921. For purposes of workers’ compensation law, an employer takes the employee as it finds him, and an aggravation of a preexisting noncompensa-ble condition by a compensable injury is, itself, compensable. Jackson v. O’Reilly Auto., Inc., 2013 Ark. App. 755, 2013 WL 6685791.
When the Commission denies benefits because the claimant has failed to meét his burden of proof, the substantial-evidence standard of review requires that we affirm if the Commission’s decision displays a substantial basis for the denial of relief. Frances v. Gaylord Container Carp., 341 Ark. 527, 20 S.W.3d 280 (2000). We view the evidence in the light most favorable to the Commission’s decision, which will be affirmed when it is supported by substantial evidence. Parker v. Comcast Cable Carp., 100 Ark.App. 400, 269 S.W.3d 391 (2007). The issue is not whether the appellate court might have reached a different result from the Commission, but whether reasonable minds could reach the result found by the Commission; if so, the appellate court must affirm. Id. We defer to the Commission’s findings of credibility and the resolution of conflicting evidence. Welcher v. Davis Nursing Home, 2009 Ark. App. 831, 2009 WL 4673860.
|3Mr. Willis began working, for Great Dane Trailers on July 30, 2012, and it is undisputed that Mr. Willis had a preexisting left-knee condition at the time he was hired. Mr. Willis’s duties consisted of tire and rim assembly, and he testified that he sustained an injury while performing his job on August 9, 2012. On that day Mr. Willis was working near Jimmy Grooms, and Mr. Grooms allegedly lost control of a semi-tractor tire weighing 150 pounds and, according to Mr. Willis, the tire slammed into his left leg and pinned him against another tire. Mr. Willis testified that he could not get up and that Mr. Grooms pulled the tire off of him.
Later that day Mr. Willis filed an accident report, and he testified that he visited a doctor who gave him crutches and prescribed therapy. According to Mr. Willis, the injury caused excruciating pain and symptoms that he did not have before, and it rendered him unable to work. Another employee, Robert Whitson, testified that immediately after the accident he saw the tire pressed up against Mr. Willis’s leg, and that a few minutes later Mr. Willis said his leg was hurting and showed Mr. Whitson where it was swollen. Approximately four months later, Mr. Willis underwent arthroscopic knee surgery performed by Dr. Brian Dickson on December 17, 2012, to repair a medial-meniscus tear in his left knee.
Mr. Grooms gave a different version of the events of August 9, 2012. Mr. Grooms testified that the tire only brushed the back of Mr. Willis’s leg, and that Mr. Willis “kind of moved forward a little bit or slid.” Mr. Grooms stated that the tire did not pin Mr. Willis against another tire or cause him to buckle or fall, and that after the incident Mr. Willis said |4that he was fine and that it was “no big deal.” Mr. Willis continued working that afternoon, and Mr. Grooms said that he had no reason to believe that Mr. Willis had been injured.
It is undisputed that Mr. Willis suffered from a preexisting medical condition to his left knee. Most of the pertinent medical evidence in this case was provided by the medical records of Dr. Dickson, an orthopedic surgeon, who saw Mr. Willis for his left-knee condition both before and after the occurrence of the alleged injury. In order to analyze the preexisting medical condition of Mr. Willis, it is helpful to review the medical reports and alleged aggravation in chronological order.
May 31, 2012: Dr. Dickson first saw Mr. Willis for left knee pain at a time when Mr. Willis was not employed. In the initial report, Dr. Dickson stated that Mr. Willis had been experiencing left-knee pain and swelling for the past six months. Dr. Dickson reported joint line tenderness with slight pain with McMur-ray’s. Dr. Dickson aspirated 40 cc’s of fluid. Dr. Dickson’s Assessment was: Left knee pain with effusion. Dr. Dickson ordered an MRI.
June 4, 2012: Mr. Willis telephoned Dr. Dickson’s clinic and complained of a “lot of fluid” on his knee and reported that the pain medication was not working. June 6, 2012: The MRI radiology report indicated “some deformity of the medial meniscus with some osteophytosis and slight extrusion. No definite tear was detected.”
June 12, 2012: Mr. Willis returned for a followup visit to Dr. Dickson. Dr. Dickson noted that fluid had developed again and that Mr. Willis now reported “episodes of catching and locking” in his left knee. Dr. Dickson reported that on physical examination Mr. Willis had tenderness along the joint line especially medial and that Mr. Willis did exhibit some pain with McMurray’s. Dr. Dickson indicated that Mr. Willis is “acting like he is having some mechanical symptoms about his meniscus.” After reviewing the MRI, Dr. Dickson noted that the MRI did show some medial osteoarthritis and Dr. Dickson opined that “I think there is a small meniscus tear as well.” Dr. Dickson’s previous Assessment on May 31, 2012, was only “left knee pain with effusion.” Now, on June 12, 2012, Dr. Dickson’s Assessment’s progressed to “Left knee osteoarthritis probable medical meniscus tear.” (Emphasis added.) Dr. Dickson’s treatment plan indicated that he and Mr. Willis discussed several options [,^including arthroscopy. Dr. Dickson noted that Mr. Willis had arthroscopy to his right knee previously. Mr. Willis indicated that he was interested in ar-throscopy to his left knee and the doctor indicated that he would schedule the surgery to “hopefully ... get him some relief where he can be more active and continue to work.”
June 26, 2012: Mr. Willis again visited Dr. Dickson on a followup appointment. On this visit, Dr. Dickson’s Assessment was modified again. On June 12, 2012, Dr. Dickson’s assessment was “probable meniscus tear.” Now Dr. Dickson’s assessment was more definite: “left-knee osteoarthritis with meniscus tear.” (Emphasis added.) Dr. Dickson aspirated fluid from Mr. Willis’s knee and administered a steroid injection. Dr. Dickson further reported that Mr. Willis was scheduled for knee surgery in about three weeks.
For some reason, Mr. Willis did not have arthroscopic surgery to his left knee “in three weeks” as recommended and scheduled by Dr. Dickson. Instead, one month later, on July 26, 2012, Mr. Willis applied for employment with the appellee for work in the tire department. Mr. Willis described the work as follows: “I was hired in the Bogie Department. In the Bogie Department we would assemble the tires and rims together, air them up, and make sure they had the proper weight. A tire like the one I was working on weighed probably from 150 to 180 maybe, I know it was 150 or up, I would say, because they’re real heavy.” Part of the employment application process included the applicant providing a medical history. The signature block at the bottom of the form contains the following certification: “I hereby certify that I have read and understand all of the questions, and have responded to them to the best of my knowledge. /s/ George Willis.” In reviewing the medical questionnaire, Mr. Willis answered “no” to at least 10 questions that, had he answered honestly, required “yes” responses. Those questions include prior history of bone or joint deformity, fractures, swollen and painful joints, arthritis, neck injury, back trouble, admission to the hospital, and recommended surgery. More directly on point, the claimant | r,answered “no” to the question of whether he had any history of “trick or locking knees” despite the fact that Dr. Dickson noted in his medical reports only six weeks earlier that the claimant had experienced episodes of catching and locking in his left knee.
Mr. Willis began work with the appellee on or about July 30, 2012. The alleged accident occurred on August 9, 2012, only ten days later. Mr. Willis’s first visit to Dr. Dickson after the alleged accident was on September 27, 2012. At that time Dr. Dickson reported a left-knee contusion and stated, “I do think his current problem is from his work injury, even though he had some preexisting arthritis.” On December 4, 2012, Dr. Dickson initialed a prepared statement giving his opinion, within a reasonable degree of medical certainty, that Mr. Willis’s work accident resulted in a left-knee injury and need for surgery.
In this appeal, Mr. Willis argues that the Commission erred in concluding that’he failed to prove a compensable aggravation to his left knee. Mr. Willis contends that his version of the events surrounding the accident was more logical than Mr. Grooms’s version, and that the traumatic impact of the tire exacerbated his preexisting condition. Mr. Willis further argues that the Commission should have credited the opinion of Dr. Dickson, who stated that he thought Mr. Willis’s knee problems were work-related. Finally, Mr. Willis claims that he proved an aggravation with objective medical findings because, during the arthroscopic surgery, Dr. Dickson discovered and repaired infirmities that before then had not been detected.
We hold that the Commission’s decision displays a substantial basis for denying compensability. The Commission found that Mr. Willis lacked credibility, in part because |7Mr. Willis had falsified information on the pre-employment medical-history questionnaire. Mr. Willis had a long history of other preexisting medical conditions including significant back, neck, and right-leg problems, and by his own admission he failed to accurately disclose many of his prior problems when answering direct questions about them on the questionnaire. Some of these misrepresentations pertained to the previous problems with Mr. Willis’s left knee. In particular, Mr. Willis answered “no” to whether he had ever experienced locking knees and whether he had ever been recommended for surgery. The Commission stated that “judging by the number of questions that [Mr. Willis] admittedly answered wrong, this was an intentional act.” Mr. Willis was ultimately terminated from his employment when Great Dane Trailers discovered his dishonesty. We have long held that the Commission is not required to believe the testimony of the claimant or any witness, Weaver v. Whitaker Furniture Co., Inc., 55 Ark.App. 400, 935 S.W.2d 584 (1996), and we are bound to accept the Commission’s finding that Mr. Willis’s version of the events was not credible.
Moreover, it is the Commission’s duty to weigh the medical evidence. Loar v. Cooper Tire & Rubber Co., 2014 Ark. App. 240, 2014 WL 1632547. In this case the Commission assigned little weight to Dr. Dickson’s subsequent opinion on causation, noting that the doctor’s opinion was based on the history given to him by Mr. Willis, whose credibility had been discounted by the Commission. The Commission further noted that Mr. Willis had been diagnosed with significant left-knee problems prior to obtaining employment with Great Dane Trailers, and that arthroscopic surgery had already been recommended. Instead of having the surgery as recommended by Dr. Dickson in July 2012, Mr. Willis sought employment with the appellee, | ¿where he was employed for just ten days prior to the alleged aggravation. Dr. Dickson’s reports show a progression of the diagnoses of Mr. Willis’s left-knee problems prior to the alleged injury. On May 31, 2012, the initial diagnosis was only “left knee pain.” After the MRI and other clinical testing, on June 12, 2012, Dr. Dickson diagnosed a “probable medial meniscus tear” (Emphasis added.) And finally, on June 26, 2012, Dr. Dickson diagnosed a “meniscus tear.” and scheduled surgery in three weeks. The surgery was not performed, however, until December 17, 2012, which was after Mr. Willis’s brief employment with appellee, and both the pre- and postoperative diagnoses remained the same as before: “left-knee medial +men: iscus tear with osteoarthritis.”
On this record, we hold that there was substantial evidence supporting the Commission’s conclusion that all of Mr. Willis’s knee problems were preexisting, and that Mr. Willis failed to prove a compensable aggravation arising out of his employment. Therefore, we affirm the Commission’s decision.
Affirmed.
PITTMAN and WALMSLEY, JJ., agree. | [
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KENNETH S. HIXSON, Judge.
| T After a hearing on a motion to suppress and a bench trial in Pulaski County ■Circuit Court, appellant John Ellis Johnson was convicted of possession of a firearm by certain persons, theft by receiving, and fleeing. Johnson was sentenced to concurrent terms totaling six years of imprisonment. On appeal, appellant argues (1) that the firearm-related convictions were not supported by sufficient evidence that he was in possession of either firearm, and (2) that the trial court clearly erred in denying his motion to suppress because he was impermissibly detained after the legitimate reason for the traffic stop had concluded. We affirm.
Appellant’s convictions in this case arose from a traffic stop at approximately 9:00 p.m. on May 9, 2013, on South University Avenue in Little Rock. Two police officers were on patrol; the driver’s side window was down on the patrol car. Officer Derrick Hilton, who | ¡¡was driving, smelled a strong odor of marijuana emanating from a white Chevrolet Caprice in front of the patrol car. Appellant was the sole occupant and driver of the Caprice. Officer Hilton stated that the Caprice’s windows were “slightly down” on both the driver and passenger side. The police initiated a vehicle registration check as they followed, and although the car was white, the registration showed it to be registered to appellant as a blue car. The police then initiated a traffic stop, and the Caprice pulled into a nearby Exxon station. As the patrol car pulled into the Exxon lot, Officer Hilton “smelled a very strong odor of air freshener coming from the vehicle,” and the smell continued as they approached to speak with appellant. When asked about the smell of marijuana, appellant denied smoking or possessing any, but he “continued to spray air freshener.”
Appellant was asked to exit the vehicle; he complied. The officers began to explain that they smelled marijuana coming from his car. Hilton said that he could smell marijuana on appellant’s clothing. Hilton’s companion on patrol, Officer Seth Thomas, entered the Caprice, and at that time, appellant “took off running.” Two more officers arrived to assist. Officers McKenzie and Baker were in another patrol car. As they arrived, appellant fled on foot. Officer Baker chased and eventually apprehended appellant. In the immediate area where appellant was arrested for fleeing, Hilton found a .22 caliber Freedom Arms firearm. This was the basis for the felon-in-possession-of-a-firearm charge, when it was later learned that appellant was a felon.
Officer Seth Thomas confirmed the course of events as related by Officer Hilton, except that Thomas could confirm that only one of the Caprice windows was down, not |sboth. He described the Caprice’s passenger window as “down a crack.” Officer Thomas confirmed that he, too, could smell marijuana coming from the Caprice, even before they initiated a traffic stop. Thomas observed appellant spraying air freshener before and during the initial traffic stop. Thomas testified that after appellant fled, he stayed to search the Caprice, finding a loaded .38 caliber Smith & Wesson revolver under the driver’s seat, which turned out to be stolen from Veronica Beasley. This was the basis for the theft-by-receiving charge.
Regarding whether there was any physical evidence of marijuana in the car, Thomas testified that
[tjhere were ashes, what we call shake, like little small pieces of green vegetable matter in the floorboard like a joint had been crushed out, but not enough to be able to collect. This was found in the driver’s floor.
Officer Kenneth Jamal Baker testified that when he arrived on the scene, he also smelled marijuana coming from the Caprice. Officer Baker chased appellant on foot. He observed appellant run between a house and a fence line near 53rd Street, pull an object out of his right cargo-pants pocket, and toss it to the ground. Officer Baker could not identify what the object was because it was dark, but he said that after appellant disposed of the object, appellant lay down on the ground. Officer Baker told Officer Hilton where to look for the object, and Hilton retrieved the .22 caliber weapon.
Appellant argues on appeal that the evidence here, viewed most favorably to the State, was insufficient to establish beyond a reasonable doubt that he was in possession of either of the firearms. Although listed as appellant’s second point on appeal, we must first address the |4sufficiency of the evidence prior to any other alleged trial-court error. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). In a challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the State and consider only the evidence that supports the convictions. Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006). Evidence is sufficient if it is of such character and force that it, with reasonable certainty, compels a conclusion one way or the other without resort to speculation or conjecture. Id. On appeal, we view all the evidence that supports the conviction, including evidence that may have been erroneously admitted. Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993); Graham v. State, 2012 Ark. App. 90, 389 S.W.3d 33.
Appellant does not contest that he was a felon, nor does he contest that the State proved that the Smith & Wesson firearm found in the car was stolen. Appellant’s argument is that the State failed to prove beyond a reasonable doubt that he was in possession of either firearm because neither was found in his actual possession. He adds that the evidence concerning those firearms should have been suppressed so that the evidence on that issue should not be contemplated in our sufficiency review, but this ignores our standard of review. See Scroggins, supra. We hold that there is sufficient evidence that appellant was in possession of these firearms as defined in Arkansas law.
The State is not required to prove actual possession but may instead prove that the accused was in constructive possession. Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002). For constructive possession, the State must establish that the defendant exercised care, control, and management over the contraband. Tubbs v. State, 370 Ark. 47, 257 S.W.3d 47 (2007). | ¿Constructive possession may be implied where the contraband is found in a place immediately and exclusively accessible to the accused and subject to his control. Polk, supra. We hold that the fact-finder here could infer constructive possession of the firearms. One firearm was under the driver’s seat of the Caprice, which was solely owned and occupied by appellant. This is sufficient evidence of constructive possession. The other firearm was found in the immediate vicinity of appellant’s arrest after fleeing, and appellant was seen pulling an object from his pocket and throwing it to the ground. This is sufficient evidence from which the fact finder could infer constructive possession of that firearm as well.
Appellant’s other argument on appeal concerns the denial of his motion to suppress the evidence based on an alleged illegal detention, search, and seizure. Appellant concedes that the initiation of a traffic stop was legal; his argument is focused on the continued detention after the police had completed their check of appellant’s driver’s license and registration. We disagree that appellant has demonstrated clear error.
In reviewing a trial court’s denial of a motion to suppress, we conduct a de novo review based on the totality 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 trial court and proper deference to the trial court’s findings. Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007). Arkansas appellate courts defer to the superior position of the circuit court to evaluate the credibility of witnesses at a suppression hearing. Ilo v. State, 350 Ark. 138, 85 S.W.3d 542 (2002). We will reverse |fithe denial' of a motion to suppress only if the ruling is clearly against the preponderance of the evidence. Id.
The smell of marijuana emanating from a vehicle gives rise to reasonable suspicion to detain the occupant or occupants to determine the lawfulness of their conduct, to search the vehicle, and to arrest the occupants, depending on the circumstances. Cockrell v. State, 2010 Ark. 258, 370 S.W.3d 197; McDaniel v. State, 337 Ark. 431, 990 S.W.2d 515 (1999); Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997); Lopez v. State, 2009 Ark. App. 750, 2009 WL 3762915. The critical inquiry, whether there is an objectively reasonable suspicion to continue to detain a motorist, requires us to focus on what information was gleaned by the officers prior to the conclusion of the traffic stop. See Yarbrough, supra.
Appellant does not argue that the State failed to demonstrate evidence that the odor of marijuana was emanating from appellant’s vehicle prior to the conclusion of the legitimate traffic stop. Appellant argues, instead, that the officers who testified to that fact were “unreliable” and that our court should give that testimony “no weight.” More than one Little Rock police officer testified that appellant and his vehicle smelled of marijuana. The credibility of those officers was a matter left to the circuit court to determine, not our court on appeal. Montgomery v. State, 367 Ark. 485, 241 S.W.3d 753 (2006); Robinson v. State, 2013 Ark. App. 464, 2013 WL 4766711. The denial of appellant’s motion to suppress was not clearly against the preponderance of the evidence.
Affirmed.
WHITEAKER and BROWN, JJ., agree. | [
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Larry D. Vaught, Judge.
Appellant Marcos Amaya sustained a compensable injury to his back on June 2, 2004, when he stepped into a hole while attempting to carry a part of a heavy tree during the course of his employment with appellee Newberry’s 3N Mill. On appeal, he argues that the Workers’ Compensation Commission erred in its decision that he was not entitled to additional temporary partial disability benefits and that he was not entitled to additional medical treatment (back surgery). We affirm in part and reverse in part.
Following his undisputed compensable injury, Amaya was treated by Dr. Shannon Card, who ultimately referred him to Dr. Kelly Danks, a neurosurgeon. Dr. Danks recommended that Amaya undergo epidural steroid injections for his back injury after the physical therapy did not resolve all of his symptoms. In a report dated March 14, 2006, Dr. Danks noted:
Marcos returns. He had epidural steroid injection by Dr. Cannon. This only afforded him temporary relief of no more than two weeks. At this time, I have discussed his options with him, which include surgical treatment. He would most probably need a posterior lumbar interbody fusion at L4-5 and L4-S1. I do not believe surgery is going to return him to the status of being able to go back to roofing. At this time, he does not feel like he would like to proceed with surgical treatment. I have given him some Arthrotec to take. I have ordered a functional capacity to be performed on him. I will see him back after this is done.
Amaya underwent an independent medical evaluation by Dr. Steven Cathey on December 8, 2005. Dr. Cathey stated in his evaluation:
IMPRESSION: Chronic low back pain most likely secondary to degenerative lumbar disc disease. Although Mr. Amaya most likely did suffer some type of musculoskelatal injury a year and a half ago, I believe his continued symptoms are more likely related to the degenerative changes documented on the MRI scan than to the occupational injury itself.
RECOMMENDATIONS:
1. Although I would like to have an opportunity to review the MRI scan firsthand, I do not believe Mr. Amaya is a candidate for lumbar disc surgery, spinal fusion, or other neurosurgical intervention. Based on my review of Dr. Danks’ clinic notes, I do not believe he was particularly enthusiastic about the prospects of surgery helping in this case either.
2. I believe epidural steroid injections are a reasonable treatment option at this point. I believe this should also be covered under his workers [sic] compensation carrier. I base this on the fact that he was never offered epidural steroid injections during the initial phase of his injury and might have actually responded favorably had this been carried out.
3. Since the patient’s lower back pain has been refractory to trials of physical therapy, medication, etc[. . .], I really do not see much point in continuing these options any further.
4. As far as his job is concerned, I believe Mr. Amaya will either need to return to work at a regular duty or find something else to do where he can handle himself. Again, he does seem motivated to go back to work, and I believe he should be encouraged to along these lines. Perhaps a functional capacity evaluation is in order to help return him to the workforce. He certainly does not seem to be making any progress just sitting around the house every day.
5. I believe he has essentially reached maximal [sic] medical improvement with regard to his occupational injury. Since the degenerative changes noted on the MRI scan are almost certainly preexisting, I do not believe he has sustained any long-term impairment referable to the June 2, 2004, occupational injury.
6. I have encouraged the patient to follow up with Dr. Danks to discuss these issues with him if he remains symptomatic following the epidural steroid injection later this month. As always, I stand ready to reevaluate the patient should new problems arise.
On December 20, 2005, Dr. Cathey noted that he had reviewed Amaya’s MRI scan that he did not have available at the time of the IME. According to Dr. Cathey’s observation:
The study shows congenital spinal stenosis. There is a right para-central disc protrusion at L4-L5 an [sic] a smaller left paracentral disc herniation at L5-S1. I was not, however, impressed with any resulting nerve root compression or spinal stenosis at either L4-L5 or L5-S1.
ASSESSMENT/PLAN: Based on my review of Mr. Maaya’s [sic] MRI scan of his lumbar spine, I do not see an indication for lumbar disc surgery or other neurosurgical intervention. None of the other opinions rendered following his independent medical evaluation have been affected by my review of the MRI scan.
On March 21, 2006, Amaya underwent a functional capacity evaluation. The evaluation report noted that he gave an unreliable effort during the evaluation. Specifically, the report stated:
RELIABILITY AND CONSISTENCY OF EFFORT
The results of this evaluation suggest that Mr. Amaya gave an unreliable effort, with 40 of 55 consistency measures within expected limits. Mr. Amaya demonstrated higher than expected coefficient of variations with repetitive trial isometric strength testing, which is an indication of inconsistent effort between repeated trials. Mr. Amaya also had inappropriate results with horizontal strength change testing, which is also an indication of inconsistent effort with isometric strength testing. Mr. Amaya also demonstrated significandy higher force with both the right and left handed rapid grip exchange, which is an indication of sub-maximal effort with the hand grip testing. Mr. Amaya’s AROM with lumbar flexion was significantly limited during formal evaluation but with functional aspects of the testing, Mr. Amaya was noted to have minimal deficits with lumbar flexion. Mr. Amaya demonstrates normal movement patterns throughout testing yet demonstrated moaning with slow movement patterns with formal measurement. Mr. Amaya’s pain reports did not correlate with his movement patterns and overall abilities. He moved freely throughout testing and without significant body mechanic changes that indicated pain. He demonstrates no outward expression of pain and no facial expressions indicating pain as well. These do not correlate with his subjective complaints of pain at a level 7. His movement patterns did not change when his pain was between a 4 and 7. It is further noted that Mr. Amaya was positive on Waddell’s signs for non-organic back pain including passive hip rotation, overreaction to light touch, regional pain over a broad area and axial loading of the spine. These are inappropriate illness responses.
FUNCTIONAL ABILITIES
Mr. Amaya demonstrated inconsistent effort but did demonstrate the ability to perform material handling activities at the Medium level with an occasional lift/carry of 50 lbs. Mr. Amaya is able to perform the following activities on a Constant basis: Push Cart-40Lb, Pull Cart-40 Lb, Reach with 5 lb. Weight, Fingering (L), Fingering (R), Sitting and Standing, Mr. Amaya demonstrates no difficulty with sitting or standing. Mr. Amaya is able to perform the following activities on a Frequent basis: Walk, Balance, Stoop, Overhead (R), Handling (L), Handling (R). Mr. Amaya is able to perform the following activities on an Occasional basis: Carry up to 50 Lb.
FUNCTIONAL LIMITATIONS
Mr. Amaya’s true functional limitations remain unknown due to the inconsistencies that he demonstrated but he did not demonstrate the ability to handle material over 50 lbs. He performed at a level that placed him in the Frequent and Constant categories with functional activities.
CONCLUSIONS
Mr. Amaya underwent functional evaluation this date with unreliable results for effort. Overall Mr. Amaya demonstrates the ability to perform work at least at the MEDIUM Physical Demand Classification as determined through the Department of Labor.
After Amaya’s functional capacity evaluation, Dr. Danks authored a letter dated May 3, 2006. He stated that he had not evaluated Amaya since his last visit on March 14, 2006, and had not seen the results of the FCE. Dr. Danks reiterated his prior discussion of surgery and Amaya’s statement that he did not wish to proceed with surgery. Dr. Danks indicated that Amaya’s work limitations would be dictated by the FCE and noted that, in his opinion, Amaya had reached maximum medical improvement.
After considering the evidence presented at the hearing, the Administrative Law Judge found that Amaya had not proved by a preponderance of the evidence that he was entitled to additional medical treatment in the form of back surgery. The Commission affirmed the decision of the Administrative Law Judge on this point.
The Commission then addressed Amaya’s request for additional temporary total disability benefits. Specifically, the Commission was impressed with Dr. Cathey’s December 8, 2005, opinion that Amaya had reached maximum medical improvement. However, the Commission could not conclude that on that date Amaya had reached maximum medical improvement, because it was hamstrung by a prior — unchallenged — ALJ opinion from January 30, 2006, following a January 5, 2006 hearing. In that opinion, the ALJ found that “[Amaya] remains within his healing period for his compensable back injury.” Because there was no appeal from this decision, the Commission in the instant case attempted to reconcile the ALJ’s conclusion that Amaya was still in his healing period in late January 2006 with Dr. Cathey’s opinion that he had already reached maximum medical improvement in December 2005.
In a seemingly arbitrary conclusion, the Commission affixed the termination date of Amaya’s benefits, not on the date that Dr. Cathey opined, but on the date of the prior hearing, noting: “it is axiomatic that this finding only applied to the facts and evidence as presented at the January 5, 2006, hearing.” The Commission went on to note that since that hearing, Amaya had undergone an FCE (on March 21, 2006) in which he was found “to have given inappropriate pain responses and an unreliable effort.” The Commission also referenced Dr. Danks’s letter dated May 3, 2006, where he agreed that Amaya’s work restrictions would be as reflected in the FCE.
The Commission further noted that the only treatments that Amaya received after the January 5, 2006 hearing were epidural steroid injections (and a follow-up evaluation by Dr. Danks). The Commission found that the injections only afforded Amaya “temporary relief,” and, “as ofjanuary 5, 2006 [Amaya] had reached a plateau in his healing that no form of additional treatment would or could alleviate. At best, [Amaya] only required palliative treatment to maintain him at this present level of healing.” The Commission also went on to note that other than Amaya’s “own self-serving testimony that he is unable to work, there is absolutely no evidence that [he] should be awarded additional temporary total or temporary partial disability benefits.” The Commission believed that Amaya was “clearly not motivated to work” because, otherwise, he would have worked more than a day or two here and there. Based on these findings, the Commission reversed the ALJ’s award of temporary partial disability benefits from January 5, 2006, through March 21, 2006 (the date of Amaya’s FCE), and it is from this reversal (and the denial of his claim for additional treatment) that Amaya now appeals.
In appeals involving claims for workers’ compensation, this court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s decision and affirms the decision if it is supported by substantial evidence. See Kimbell v. Ass’n of Rehab Indus. & Bus. Companion Prop. & Cas., 366 Ark. 297, 235 S.W.3d 499 (2006). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether the appellate court might have reached a different result from the Commission; if reasonable minds could reach the result found by the Commission, the appellate court must affirm the decision. Id. Where the Commission denies a claim because of the claimant’s failure to meet his burden of proof, the substantial-evidence standard of review requires that we affirm if the Commission’s decision displays a substantial basis for the denial of relief. Id. We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Dorris v. Townsends of Ark., Inc., 93 Ark. App. 208, 218 S.W.3d 351 (2005).
Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Patterson v. Ark. Dep’t of Health, 343 Ark. 255, 33 S.W.3d 151 (2000). When there are contradictions in the evidence, it is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. Id. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Id . The Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). Thus, we are foreclosed from determining the credibility and weight to be accorded to each witness’s testimony. Arbaugh v. AG Processing, Inc., 360 Ark. 491, 202 S.W.3d. 519 (2005). As our law currently stands, the Commission hears workers’ compensation claims de novo, and this court has stated that we defer to the Commission’s authority to disregard the testimony of any witness, even a claimant, as not credible. See Bray v. Int’l Wire Group, 95 Ark. App. 206, 235 S.W.3d 548 (2006).
In his first point on appeal, Amaya contends that substantial evidence does not support the Commission’s finding that he failed to prove that additional medical treatment (back surgery) was reasonably necessary for treatment of his injury. The law requires that “the employer shall promptly provide for an injured employee such medical, surgical, hospital, . . . and nursing services and medicine ... as may be reasonably necessary in connection with the injury received by the employee.” Ark.Code Ann. § 11 — 9— 508(a) (Supp. 2007). However, Amaya has the burden of proving by a preponderance of the evidence that surgery is reasonable and necessary. Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.2d 31 (2004). What constitutes reasonable and necessary treatment under this statute is a question of fact for the Commission to decide. Gansky v. Hi-Tech Eng’g, 325 Ark. 163, 924 S.W.2d 790 (1996).
The question that we must resolve in the first point is whether the Commission’s decision denying Amaya’s back surgery is supported by substantial evidence. The evidence shows that Amaya was treated conservatively for his back injury with steroid injections. In a report dated March 14, 2006, Dr. Danks noted that the injections only provided temporary relief and that he had discussed various treatment options with Amaya — including surgery. However, Dr. Danks also noted that “[a]t this time [Amaya] does not feel like he would like to proceed with surgical treatment.” As a result, Dr. Danks ordered an FCE. The FCE was performed on March 21, 2006, and showed that, despite Amaya’s “unreliable effort,” he could still perform medium-level work. This finding is in direct conflict with Amaya’s testimony that he could only work an average of two days per week before having to rest several days. After the FCE, Dr. Danks authored a letter dated May 3, 2006. He noted in the letter that he had not seen Amaya since March 14, 2006, and that he had not seen the results of the FCE. Dr. Danks went on to conclude that in his opinion Amaya had reached maximum medical improvement. Finally, and most importantly, there was evidence presented showing that Dr. Cathey unequivocally opined that Amaya’s back troubles were degenerative and that he was not a surgical candidate.
After a review of the evidence, we affirm the Commission on this point. The opinions from Amaya’s own physician coupled with Cathey’s strong position that Amaya is not a surgical candidate satisfactorily establish that Amaya failed to meet his burden of proving that he was entitled to back surgery.
We now turn our attention to Amaya’s second point of appeal, that the Commission erred in its reversal of the ALJ’s award of temporary partial disability benefits through March 21, 2006 (the date of Amaya’s FCE). In order to be entitled to temporary partial disability benefits, Amaya had the burden of proving by a preponderance of the evidence that he remained in his healing period and that he suffered a partial incapacity to earn wages. Ark. State Highway & Transp. Dep’t v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). Amaya had the benefit of a prior hearing (held on January 5, 2006, with the corresponding opinion filed January 30, 2006), which awarded Amaya temporary partial disability benefits beginning on June 3, 2004, and continuing through a date “yet to be determined.” In the subsequent hearing the ALJ determined that the benefits would run through March 21, 2006, the date of Amaya’s FCE. However the Commission reversed this award, and determined that Amaya’s healing period concluded on January 5, 2006. The Commission’s decision was based on the opinion rendered by Dr. Cathey back in December of 2005 that Amaya had reached maximum medical improvement. Because there was an unchallenged finding that on January 5, 2006, Amaya was still in his healing period, the Commission was unable to terminate benefits on December 20, 2005, the date Dr. Cathey opined that Amaya had reached maximum medical improvement.
The Commission discounted the fact that Dr. Cathey stated (back in December of 2005) that Amaya should have steroid injections for his back trouble and that workers’ compensation should pay for the treatment. Cathey’s December opinion also recommended that Amaya follow up with Dr. Danks (which Amaya did on March 14). The Commission concluded that the two injections Amaya received in 2006 were only “pain management” and his doctor’s visit was just a “follow-up” — not active treatment.
We disagree. Our court has previously concluded that steroid injections are active treatment, and Dr. Cathey affirmatively described them as such. See Breakfield v. In & Out, Inc., 79 Ark. App. 402, 88 S.W.3d 861 (2002). Further, the record demonstrates that Amaya was still under a doctor’s care as late as March 14, 2006. Amaya was not officially released to return to work until March 21, 2006, the date of his FCE. As such, based on the substantial evidence presented at the hearing, Amaya’s disability benefits should not have been terminated on January 5, 2006. The Commission’s decision on this issue is reversed, and the case is remanded for an award of temporary partial disability benefits through March 21, 2006.
Affirmed in part and reversed and remanded in part.
Pittman, C.J., Glover, Baker, and Miller, JJ., agree.
Griffen, J., dissents. | [
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Sam Bird, Judge.
Owens Planting Company and its insurer, AIG Claim Services, Inc., appeal from a decision of the Workers’ Compensation Commission awarding claimant Arvel Graham additional temporary total disability benefits and medical benefits. Appellants contend that neither the Commission’s determination that Graham is entitled to additional medical treatment nor its determination that Graham is entitled to additional temporary total disability benefits is supported by substantial evidence. We affirm the Commission’s decision.
On April 26, 2001, while working for Owens Planting Company, Graham was injured when the bucket of the front-end loader he was driving unexpectedly dropped, stopping the front- end loader and causing Graham’s face to hit the steering wheel and dashboard. As a result of the accident, Graham suffered injuries to his head, arm, shoulder, back, and neck. The parties stipulated that Graham sustained a compensable injury, and appellants paid various medical expenses for treatment of Graham’s chest, back, arm, and neck and total temporary disability benefits from the date of the injury.
Several months after the accident, Graham reported headaches, dizziness, and vision and hearing problems, and he continued to experience facial pain, headaches, vertigo, and ringing in his ears through 2002. Neither Dr. Riley Jones, an orthopedic surgeon, nor Dr. Alan Nadel, a neurosurgeon — physicians authorized by appellant AIG — found anything objectively wrong with Graham and, on May 14, 2002, both released him at maximum medical improvement with no impairment from either an orthopedic or neurological standpoint. Dr. Charles Bosch, an ear, nose, and throat specialist, began treating Graham in September 2001 but was unable to cure the vertigo, head and facial pain, or dizziness. He suggested that Graham contact his family physician, Dr. Scott Hall, as the scope of Dr. Bosch’s practice did not include the continued prescription of pain medication. After a hearing in 2003, an administrative law judge awarded Graham additional benefits for Dr. Bosch’s treatment and additional temporary total disability for an indefinite time. Appellants discontinued payment of the temporary total disability benefits on January 27, 2004.
Dr. Hall referred Graham to Dr. James Fowler, an ear, nose, and throat specialist, in December 2004. After a physical examination and review of a CT scan, Dr. Fowler stated that Graham’s nose revealed severe left nasal septal deformity and that the scan revealed a deviated nasal septum, turbinate hypertrophy, chronic maxillary sinusitis, intraorbital emphysema bilaterally (abnormal passageway of air into the eye socket), and bilateral chronic ethmoid sinusitis. Dr. Fowler performed surgery in February 2005 and in July 2005. He opined that the intraorbital emphysema, first noted in September 2001, would only occur from disruption of bone in an air-containing space — that is, from trauma. In reviewing Dr. Fowler’s testimony, the Commission noted that the record did not show any cause for the deviated septum other than the April 2001 compensable injury. Dr. Fowler also reported that Graham had hearing loss in both ears, which would certainly be due to trauma associated with a severe blast of noise or pressure. He recommended additional diagnostic testing at UAMS by Dr. John Dornhoffer, a neuro-otologist. Dr. Fowler also stated on March 3, 2006, that Graham had not reached maximum medical improvement and was totally unable to perform work of any kind for wages.
The ALJ found Dr. Fowler to be a credible witness and found the treatment provided by him and his authorized referrals was reasonable and necessary in relation to the compensable injury. The ALJ also found that Graham was entitled to temporary total disability benefits from January 28, 2004, to a date yet to be determined. The Commission affirmed the ALJ’s findings. Appellants bring this appeal challenging the sufficiency of the evidence to support the Commission’s award of benefits.
Where the sufficiency of the evidence is challenged on appeal, we review the evidence in the light most favorable to the findings of the Commission and will affirm if those findings are supported by substantial evidence. Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003). Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. We recognize that it is the Commission’s function to determine the credibility of the witnesses and the weight to be given their testimony, Powers v. City of Fayetteville, 97 Ark. App. 251, 248 S.W.3d 516 (2007), and that when the medical evidence is conflicting, the resolution of that conflict is a question for the Commission. Cedar Chem. Co. v. Knight, 99 Ark. App. 162, 258 S.W.3d 394 (2007).
Appellants’ first point on appeal is that the Commission erred in finding Graham proved entitlement to additional medical treatment by Dr. Fowler. They argue that, when Graham was first treated at the emergency room after the accident, he mainly complained of injuries to his arm, back, and neck, not to his nose, face, or head. They point out that his orthopedic treating physician, Dr. Jones, found maximum medical improvement with no impairment. They also argue that Dr. Nadel, a neurosurgeon, found nothing objectively wrong with Graham and released him at maximum medical improvement from a neurological standpoint with no impairment. Appellants note that Dr. Bosch, an ear, nose, and throat specialist who saw Graham because of his complaints of headaches and dizziness, released him, indicating that there was nothing he could do for him. Finally, appellants argue that Graham did not begin seeing Dr. Fowler until more than three years after the accident and that Graham had already been released from care regarding all of his injuries. Appellants contend that Dr. Fowler’s treatment was not reasonable and necessary in connection with the injuries he received in the accident.
Arkansas Code Annotated section 11-9-508 requires employers to provide medical services that are reasonably necessary “in connection with the injury received by the employee.” Ark. Code Ann. § ll-9-508(a) (Supp. 2007). The employee has the burden of proving by a preponderance of the evidence that medical treatment is reasonable and necessary. Wal-Mart Stores, Inc. v. Brown, supra. What constitutes reasonably necessary treatment under the statute is a question of fact for the Commission. Hamilton v. Gregory Trucking, 90 Ark. App. 248, 250-51, 205 S.W.3d 181, 183 (2005).
The record shows that Graham’s face slammed into the steering column during the accident. Evidence before the Commission indicated that Graham had complained of pain around his nose and face within six months of the accident. The Commission noted that a CT scan performed in September 2001 of Graham’s facial bones showed “evidence for intraorbital emphysema” which “could be related to previous trauma.”
Dr. Bosch reported that Graham complained of hearing loss, dizziness, and vertigo within several months of the accident. Dr. Bosch’s initial examination in September 2001 indicated Graham had a “septal deviation to the left . . . and tenderness in the right nasal vestibule area and paranasal region corresponding with right intraorbital nerve injury.” Indeed, in November 2002, when Dr. Bosch was unable to treat these ailments successfully, he reported that his “medical opinion” was that it was “imperative that Mr. Graham be further evaluated for his complaints of his head and facial pain and more importantly, his complaints of dizziness.” The Commission noted that the ALJ had determined in an opinion dated August 15, 2003, that Graham proved he was entitled to treatment with Dr. Bosch “for his cranial injury (dizziness, pain, etc.)” and that Graham was entitled to temporary disability for “his facial injury,” and that appellants had not appealed these findings.
Dr. Fowler performed surgery in February 2005 to treat a septal deformity and other associated abnormal findings. He performed additional nasal-related surgery in July 2005. In October 2005, Dr. Fowler explained that “intraorbital emphysema,” first noted in September 2001, “could only occur from disruption of bone in air containing space,” that is, trauma. The Commission found Dr. Fowler’s opinion that Graham’s facial injuries were caused by the accident credible and that the treatment he provided was reasonably necessary in connection with Graham’s compensable injury. We hold that substantial evidence supports the Commission’s findings.
In their second point on appeal, appellants challenge the Commission’s award of additional temporary total disability benefits. First, they argue that substantial evidence does not support this finding because Graham was released from care by three separate physicians. Second, they contend that the parties stipulated at the hearing for any temporary total disability benefits to end in July 2005.
Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. K II Constr. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002). Whether or not an employee’s healing period has ended is a question of fact for the Commission. Id. In this case, the Commission found that Dr. Fowler began treating Graham in December 2004 and found credible Dr. Fowler’s opinion in October 2005 that Graham was unable to perform work of any kind. The Commission noted that, while Dr. Fowler testified in April 2006 that Graham had reached a plateau with regard to the treatment provided by Dr. Fowler, Dr. Fowler opined that Graham needed to complete diagnostic testing at UAMS before a final determination regarding maximum medical improvement could be made. The Commission affirmed the ALJ’s finding that Graham remained in his healing period and was entitled to temporary total disability from January 28, 2004, to a date yet to be determined. We hold that this finding is supported by substantial evidence.
Additionally, we find no evidence in the record to support appellants’ contention that the parties stipulated to end temporary total disability in July 2005. The “stipulations” in the prehearing order filed by the ALJ on July 21, 2005, indicate that temporary total disability benefits had been paid through January 27, 2004. There is nothing in these stipulations, however, limiting these benefits. In the “contentions” section of the order, but notably not in the stipulations section, the ALJ states that Graham requests additional temporary total disability benefits, and there are blanks for the period of time requested that have been filled in with handwritten insertions stating as follows: from “1-28-04 [to] July 2005 (see Dr. Fowler’s depo).” No mention was made of this handwritten insertion at the hearing before the ALJ held on March 14, 2006. In fact, in response to the ALJ’s question, “What dates of temporary total are you requesting?” Graham’s attorneys responded from “1/28/04, through a date yet to be determined.” Appellants neither objected to nor clarified this response. Moreover, the ALJ’s opinion states that Graham requested additional temporary total disability benefits from January 28, 2004, to a date yet to be determined.
For the foregoing reasons, we affirm the decision of the Commission.
Affirmed.
Pittman, C.J., and Vaught, J., agree. | [
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John B. Robbins, Judge.
Appellant Darryl A. Prodell was convicted by a jury of being a felon in possession of a firearm. He was sentenced as a habitual offender to fifteen years in prison. Mr. Prodell’s sole argument on appeal is that the trial court erred in refusing to submit his proffered jury instruction on the “choice of evils” defense. We affirm.
It was stipulated at trial that Mr. Prodell has a prior felony conviction. The State’s evidence concerning Mr. Prodell’s possession of a firearm included the testimony of Robert McKellar, a pawn broker. Mr. McKellar testified that onjanuary 10, 2007, Mr. Prodell entered American Pawn and was paid a total of $100 in exchange for a .50 caliber muzzle-loading firearm, a printer/copier, and some tools. A pawn ticket was admitted into evidence showing that Mr. Prodell had pawned these items.
Darryl Prodell’s father, Darwin Prodell, testified in Darryl’s defense. Darwin testified that Darryl has a wife and three children, and that he gave the firearm to his son to help him financially. Darwin explained:
I am familiar with the allegation that Darryl possessed a firearm, as I owned the firearm, a .50 caliber muzzle loader. Darryl came into possession of the firearm because they were strapped for money and we had been trying to help them as much as we could and it was another item that I could give him to pawn to get money to pay the bills. I was familiar with his financial circumstances and I would consider their financial situation at the time to be an emergency for them. He had my permission to take it to the pawn shop and it was my idea for him to do so. It was a quick way to get some extra cash and it was just laying around doing nothing anyway. I didn’t see any harm in it. I didn’t just give him money because we’re strapped, too.
The appellant proffered the following jury instruction pursuant to AMI Crim. 2d 702:
JUSTIFICATION - CHOICE OF EVILS
Darryl Prodell, Defendant, asserts as a defense to the charge of Possession of a Firearm by Certain Persons that he was forced by circumstances to choose between two evils. This is a defense only if:
First: His conduct was necessary as an emergency measure to avoid an immediate public or private injury; and
Second: The desirability and urgency of avoiding that public or private injury outweighed, according to ordinary standards of reasonableness, the harm sought to be prevented by the law prohibiting Possession of a Firearm by Certain Persons.
Darryl Prodell, Defendant, in asserting this defense, is required only to raise a reasonable doubt in your minds. Consequently, if you believe that this defense has been shown to exist, or if the evidence leaves you with a reasonable doubt as to his guilt of Possession of a Firearm by Certain Persons, then you must find him not guilty.
The trial court refused to give the instruction, and Mr. Prodell now asserts that this ruling was erroneous.
The “choice of evils” statute is Ark. Code Ann. § 5-2-604 (Repl. 2006), which provides in pertinent part:
(a) Conduct that would otherwise constitute an offense is justifiable when:
(1) The conduct is necessary as an emergency measure to avoid an imminent public or private injury; and
(2) According to ordinary standards of reasonableness, the desirability and urgency of avoiding the imminent public or private injury outweigh the injury sought to be prevented by the law proscribing the conduct.
(b) Justification under this section shall not rest upon a consideration pertaining to the morality or advisability of the statute defining the offense charged.
The law is clear that a party is entitled to an instruction on a defense if there is sufficient evidence to raise a question of fact or if there is any supporting evidence for the instruction. Humphrey v. State, 332 Ark. 398, 966 S.W.2d 213 (1998). In Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999), our supreme court held that a party is entided to a jury instruction when it is a correct statement of the law and there is some basis in the evidence to support giving the instruction.
Where the defendant has offered sufficient evidence to raise a question of fact concerning a defense, the instructions must fully and fairly declare the law applicable to that defense; however, there is no error in refusing to give a jury instruction where there is no basis in the evidence to support the giving of the instruction. Yocum v. State, 325 Ark. 180, 925 S.W.2d 385 (1996). On appeal, our role is not to weigh the evidence to determine if the justification instruction should have been given, but rather we limit our consideration to whether there is any evidence tending to support the existence of a defense. Humphrey, supra. If there is such evidence, then the justification instruction must be submitted to the jury for a factual determination. See id.
In the present appeal, Mr. Prodell argues that there was a basis in the evidence for giving a “choice of evils” instruction. He directs us to his father’s testimony, where his father testified as to appellant’s desperate financial situation and stated that he gave appellant the muzzle loader to pawn for extra money. Mr. Prodell submits that this was an emergency situation and that he was trying to prevent a private injury to his family by pawning the muzzle loader at his father’s direction. Mr. Prodell asserts that there was no evidence that he used or intended to use the firearm, or that he was engaged in any conduct beyond temporarily possessing the firearm solely for the purpose of pawning it. Under such circumstances, appellant contends that the trial court abused its discretion in failing to give his proffered instruction. We disagree.
Even accepting Mr. Prodell’s father’s testimony as true, it still failed to support the existence of a “choice of evils” defense. This defense is to be rarely used and is narrowly construed and applied, see Polk v. State, 329 Ark. 174, 947 S.W.2d 758 (1997), and tbe commentary to section 5-2-604 states that the defense requires extraordinary attendant circumstances. Whisenant v. State, 85 Ark. App. 111, 146 S.W.3d 539 (2004). Illustrations of situations that might permit recourse to this defense include: (1) the destruction of buildings or other structures to keep fire from spreading; (2) breaking levees to prevent flooding a city, while in the process causing flooding of an individual’s property; and (3) temporary appropriation of another’s vehicle to remove a seriously injured person to a hospital. Whisenant, supra. Where reasonable, legal alternatives to the charged conduct can be pursued or the necessity has ended, the “choice of evils” defense is not available. See Polk, supra.
In the instant case, there was testimony that Mr. Prodell was generally “strapped for money.” However, this failed to rise to the level of the extraordinary attendant circumstances required to invoke the “choice of evils” defense. See People v. Fontes, 89 P.3d 484, 486 (Colo. Ct. App. 2003)(holding that choice-of-evils defense cannot be based on economic necessity). The testimony of appellant’s father did not demonstrate the requisite temporal urgency to justify appellant’s conduct. In short, no “imminent public or private injury” was identified. Moreover, there were reasonable, legal alternatives to the charged conduct. Instead of giving the firearm to his son, appellant’s father could have pawned the firearm himself or at least arranged for a person who was a non-felon to conduct the transaction. Because there was no basis in the evidence for giving a jury instruction on the “choice of evils” defense, the trial court did not err in refusing Mr. Prodell’s proffered instruction.
Affirmed.
Vaught and Baker, JJ., agree. | [
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BRANDON J. HARRISON, Judge
h Gregory Whitt appeals the order of the Washington County Circuit Court that gave custody of three of his children, J.W., G.W., and T.W., to their mother, Jennifer Shirley, and closed the dependency-neglect case. He argues that the circuit court erred in finding that placement with Jennifer was in the children’s best interest. We affirm.
We explained the underlying facts of this case in a previous opinion:
In June 2013, the Department of Human Services (DHS) exercised a 72-hour hold on Gregory Whitt’s three children after he had been arrested for domestic violence, public intoxication, and endangering the welfare of a minor. The children’s mother, Jennifer Shirley, was living in Florida at the time. Gregory had obtained custody of the three children by an August 2012 agreed order.
The children were placed in foster care, and the circuit court later adjudicated the children dependent-neglected. In its adjudication order, the court made the following findings regarding the night the children entered DHS’s custody: Gregory and his girlfriend were drunk when the police arrived at their house; Gregory placed one of the children between him and | athe door to prevent the police from entering; and his girlfriend had a bloody lip.
At the hearing, the court ordered the children to remain in foster care. A no-contact order was already in place between Gregory and his children. The court ordered Gregory to undergo counseling and be drug tested. Jennifer, appearing at the hearing via telephone, was ordered to submit to a hair-follicle test, undergo a psychological evaluation, and be present at the next review hearing.
The court held the six-month-review hearing in October 2013. Both Gregory and Jennifer appeared; neither was represented by counsel. The first witness was Ritchie McFarland, the family-service worker. He testified that Gregory had completed counseling but had failed a drug test. McFarland recommended that the children stay in foster care. He had concerns regarding Gregory, who had said he knew where the foster parents lived and “would get his children back the legal or the illegal way.” ...
Gregory and Jennifer also testified, and the following facts were presented to the court. Jennifer lived in Florida with Gregory’s brother, David Whitt. The two were not, however, in a relationship. Further, both the maternal and paternal grandmothers lived in Florida. Jennifer did not have a job and instead stayed home to care for her and Gregory’s youngest child. (Per the August 2012 agreed order, Gregory had custody of the three oldest children, while Jennifer had custody of the fourth and youngest child.) Last, a Florida court had placed David Whitt on probation for two counts of child neglect a year earlier.
After the testimony, both DHS and the ad litem recommended that the children stay in foster care. Despite these recommendations, the court awarded permanent custody of the children to Jennifer and closed the dependency-neglect case. In its ruling, the court noted that Gregory was mentally unstable, posed an emotional threat to his children, and was unfit. It further found that Jennifer had passed a drug test and that her visitation had gone well. It ruled that giving Jennifer custody was in the children’s best interest. Finally, the court ruled that Gregory could have visitation once the no-contact order was lifted but added the requirement that his brother, David, supervise it.
Whitt v. Ark. Dep’t of Human Servs., 2014 Ark. App. 449, at 1-3, 441 S.W.3d 33, 34-35 (Whitt I). In Whitt I, we held that the circuit court erred in granting Jennifer permanent custody because “there simply was not enough information in front of the court to make |sthis decision. Rather, the facts in front of the court suggested the need for further investigation into the appropriateness of both parents.” Id. at 5, 441 S.W.3d at 36. We therefore reversed and remanded for further proceedings.
Upon remand, the circuit court held a permanency-planning hearing on 10 October 2014. Nirika Morris, the Washington County DHS Supervisor, introduced a court report and a case plan and recommended continued reunification efforts with Jennifer. This recommendation was based on the fact that an Interstate Compact on the Placement of Children (ICPC) home study had not been completed; Morris agreed that if a favorable ICPC study was in place, she would recommend returning the children to their mother. Morris also explained that Gregory had been recently convicted on criminal charges and sentenced to six years’ imprisonment, so the Department was not recommending further reunification efforts with him. Morris agreed that, according to the court report, the children were “doing great” both in school and at home.
On cross-examination, Jennifer’s counsel attempted to introduce a home study of Jennifer’s home conducted in November 2013 by the Florida Department of Children and Families (DCF), but Gregory’s counsel objected on hearsay and relevance grounds. The court initially decided to allow the report into evidence as a business record but ultimately denied the admission of the report because counsel failed to provide opposing counsel with a copy of the report in advance of the hearing. The report was proffered and made part of the record.
Gregory testified that he was charged with jury tampering in June 2013 and was currently incarcerated at the Washington County Sheriffs Department. Counsel | ¿introduced certified documents from the Elkins District Court, which showed that in December 2013, Gregory was found guilty of endangering the welfare of a minor. Gregory acknowledged that because of his incarceration, the children could not ■ go home with him, but he was concerned about them returning to Florida with their mother because she had “abused them physically and mentally in the past.” Gregory explained that in December 2012, he observed a bruise on J.W., and he also stated that he had seen evidence of physical abuse on all the children. Gregory also testified that he knew “for a fact” that Jennifer was using drugs. He expressed concern with Jennifer and the children living with his brother, David, and Gregory’s counsel introduced a certified copy of David’s plea of guilty to child neglect and battery in October 2012. Gregory also expressed concern that Jennifer did not have a job, a car, or any way to support herself without David. Gregory stated that he would like the children to be placed with his current wife, Toni Whitt, or her parents. On cross-examination, Gregory acknowledged that he had been found guilty of jury tampering and sentenced to six years’ imprisonment. He also acknowledged that he had provided no financial support to his children in the past year but explained that it was “because I have had no available contact.”
Twelve-year-old J.W. testified that he was in the seventh grade at Cutler Ridge Middle School in Miami, Florida, and that he had good grades. He explained that he was in a special program at school that focuses on marine biology and that he “love[d] it.” As for his living arrangements, J.W. explained that he and his little brother T.W. slept on bunk beds in one room; his brother G.W. and his cousin Ray slept on bunk beds in another room; his mom slept in a third room, with his young est brother, M.W., in a 15toddIer bed; and his Uncle Dave slept on a pull-out couch. He testified that he had never seen anyone drink alcohol at the house and that his mother had never hit him or his brothers. He also stated that his uncle helped take care of him and his brothers and that he felt safe around his uncle. When asked if he wanted to go home to Florida, J.W. said yes, and when asked if he wanted to see his father, he said, “I can’t really answer that.”
David Whitt testified that Jennifer and the children currently live with him and his son, Ray, and that all the children get along fine. He explained that the house had four bedrooms and two bathrooms but that one bedroom was still under construction. He testified that he was honorably discharged from the Marine Corps after suffering a head injury, that he currently received veterans benefits, and that his total monthly income was $4500. He also testified to the circumstances surrounding his pleading guilty to child neglect, explaining that he was involved in an altercation with his then wife and her twelve-year-old daughter while his three-year-old daughter was in the room. He clarified that he had never hit his ex-wife or her daughter and explained that he later pled guilty to child neglect because he was blackmailed by Gregory. Finally, he stated that although he had no relationship with his brother Gregory, he would be willing to act as a supervisor for the children’s visitation with Gregory.
Jennifer testified that the children had been with her for a year and that they were “doing great.” She expressed her desire for the children to remain in her care and opined that it would be detrimental to them to be removed from her home. She agreed that she did not have financial resources to take care of the children on her own but stated that, if necessary, she could get a job and her own home and that she has a great support system | fiof other family members. She also explained that she planned to look for a job once M.W. reached four years of age and started preschool.
In its oral ruling, the court noted the first statutory preference at the permanency-planning stage, which is placement with a fit parent, and opined that it could not place the children with Gregory because he is incarcerated and because it would not be in the children’s best interest. The court found that Gregory had been convicted of endangering the welfare of a minor and had committed the offense of jury tampering in March 2014, after the first order placing custody of the children with Jennifer. The court gave “no credence” to Gregory’s concerns about his children living with David, considering that Gregory had previously agreed to M.W. being in Jennifer’s custody in David’s home. The court also noted that Jennifer’s hair-follicle test was clean and that J.W., whom the court found “extremely credible,” testified that he and his brothers had never been hit by their mother. The court found “zero evidence” to support Gregory’s concern that the children were physically abused or in danger in David’s home. The court found that ICPC did not apply to the parents in this case and that the “[hjealth, safety[,] and best interests of these three older children are best served by continuing to be with their mother.” The court concluded:
At today’s Permanency Planning, the burden is on the parent to demonstrate genuine sustainable investment in completing the requirements of the case plan and following orders of the Court in order to authorize the plan to return the child to the parent and keep the goal reunification. Mr. Gregory Whitt has failed to carry his burden as he is incarcerated, he cannot provide |7stable housing for the children, he still has not resolved, I believe, the issue with the domestic violence in the home.... I am going to order that the children be placed in the permanent custody of Jennifer Shirley.
The court entered a written order on 23 October 2014 that incorporated its oral ruling. The written order also made the following findings:
Mother has complied with all of the court orders and the case plan making significant measurable progress. Specifically, she has demonstrated the ability to parent and protect the children as the children have thrived in mothers [sic] home for the past year.... There is NO EVIDENCE the children are at risk of harm in the home of their mother and uncle David Whitt.... [T]he present living situation is a stable and safe home environment. Moreover, the evidence is clear and convincing that the juveniles are thriving in their present environment and are dong very well in school. The mother has made significant measurable progress .towards achieving the goals established in the case plan, alleviating or mitigating the causes of the juveniles’ removal from the home and completing the court orders and requirements of the case plan, and diligently working towards reunification.
(Emphasis in original.) Gregory again appealed the circuit court’s order granting custody to Jennifer.
This court reviews findings in dependency-neglect proceedings de novo, but we will not reverse the circuit court’s findings unless they are clearly erroneous. Porter v. Ark. Dep’t of Human Servs., 374 Ark. 177, 286 S.W.3d 686 (2008). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Seago v. Ark. Dep’t of Human Servs., 2011 Ark. 184, 380 S.W.3d 894. We give great deference to the circuit court as it is in a far superior position to judge the credibility of the witnesses. Krantz v. Ark. Dep’t of Human Servs., 2011 Ark. 185, 380 S.W.3d 927.
On appeal, Gregory argues that the circuit court again erred in finding that placing the children with Jennifer was in the children’s best interest. .He asserts that there are still |Rquestions and concerns about (1) David’s status as “child abuser,” (2) DHS’s failure to admit Jennifer’s psychological evaluation into evidence, (3) Jennifer’s current or future earning potential, and (4) the stability and appropriateness of the children’s living arrangements. Gregory also argues that the proffered Florida DCF report should have been admitted and proceeds to point out inconsistencies between information in that report and the testimony at the permanency-planning hearing.
In response, DHS contends that the evidence presented below adequately demonstrated that placement with Jennifer was in the children’s best interest. DHS notes that for the twelve months prior to the permanency-planning hearing, Jennifer cared for the children and provided for all their needs, thus giving them the necessary stability. DHS also points out that the children have done well academically and that J.W. testified that he wanted to live with his mother.
We hold that sufficient evidence was provided at the permanency-planning hearing for the court to make a best-interest determination, and we are not left with a definite and firm conviction that a mistake has been made. As to Gregory’s evidentiary argument, it was Gregory’s counsel who objected to the report’s admission; a party cannot complain of action he has induced, consented to, or acquiesced in. Dew v. Dew, 2012 Ark. App. 122, 390 S.W.3d 764. We therefore affirm the award of permanent custody to Jennifer.
Affirmed.
Gladwin, C.J., and Abramson, J., agree.
. The circuit court is correct that the ICPC does not apply when a child is returned by the sending state to a natural parent residing in another state. See Ark. Dep’t of Human Servs. v. Huff, 347 Ark. 553, 65 S.W.3d 880 (2002). | [
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PER CURIAM
11 After a 2011 jury trial, appellant John W. Magness was convicted of four counts of fourth-degree sexual assault, possession of a firearm by a felon, two counts of fleeing, and resisting arrest. The judgment reflects that he received an aggregate sentence of 300 months’ imprisonment in the Arkansas Department of Correction. The Arkansas Court of Appeals affirmed the judgment. Magness v. State, 2012 Ark. App. 609, 424 S.W.3d 395. Magness then filed in the trial court a timely pro se petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2014). The trial court dismissed and denied the petition. This appeal followed.
Magness asserts as grounds for his appeal that the trial court erred in finding that each of the three attorneys who represented him was not ineffective, that the trial court erred in failing to grant post-conviction relief because his trial attorney had committed suicide, and that the trial court incorrectly relied on a case decided after Magness’s petition was filed when it | ^denied relief on his claim that there had been an illegal search and seizure. Magness additionally alleges that the State failed to show that he was not entitled to Rule 37 relief and that the trial court’s written findings were not adequate under Arkansas Rule of Criminal Procedure 37.3. We find no reversible error and affirm. Magness’s motion for oral argument is denied.
This court does not reverse the grant or denial of posteonviction relief unless the trial court’s findings are clearly erroneous. Young v. State, 2015 Ark. 65, 2015 WL 854754. A finding is clearly er roneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id.
The trial court conducted two hearings on the Rule 37.1 petition. While it took no evidence on the issues, the order denying postconviction relief reflects that the trial court took into consideration pleadings filed by the parties and the arguments made in the hearings. Because the court granted hearings on the matter, Rule 37.3(c) required that the court determine the issues and provide written findings of fact and conclusions of law with respect to those issues.
This court has held it that is mandatory that the trial court comply with Rule 37.3(c)’s requirement to provide written findings of fact and conclusions of law on every point addressed Rat a hearing on a Rule 37.1 petition. Watkins v. State, 2010 Ark. 156, 362 S.W.3d 910 (per curiam). We remand when the findings provided are not adequate for our review, and we have consistently remanded when the trial court failed to enter any written findings following a hearing. Id. Where the trial court provides written findings on at least one, but less than all of the claims in the petition, however, we have held that an appellant has an obligation to obtain a ruling on any omitted issues to be considered on appeal. Id. Here, the findings that the trial court included in the order are adequate for our review.
Magness’s first two points on appeal concern his claims of ineffective assistance of counsel. In his Rule 37.1 petition, appellant alleged ineffective assistance by the three attorneys who represented him. Our review of claims of ineffective assistance of counsel follows the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under that two-prong analysis, to prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced his defense. Wertz v. State, 2014 Ark. 240, 434 S.W.3d 895.
The benchmark for judging a claim of ineffective assistance of counsel must be “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Taylor v. State, 2013 Ark. 146, 427 S.W.3d 29. To satisfy the first prong of the Strickland test, a postconviction petitioner must show that Rcounsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Mister v. State, 2014 Ark. 445, 446 S.W.3d 624. There is a strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional assistance. Young, 2015 Ark. 65, 2015 WL 854754. The petitioner has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable professional judgment. Id.
To satisfy the second prong of the test and show that he was so prejudiced that he was deprived of a fair trial, a petitioner must demonstrate a reasonable probability that the decision reached would have been different absent counsel’s errors. Mister, 2014 Ark. 445, 446 S.W.3d 624. The burden is entirely on the claimant to provide facts that affirmatively support his or her claims of prejudice. Stewart v. State, 2014 Ark. 419, 443 S.W.3d 538 (per curiam). Neither conclusory statements nor allegations without factual substantiation are sufficient to overcome the presumption that counsel was effective, and such statements and allegations will not warrant granting a Rule 37.1 petition. Id.
The first attorney who represented Magness and that Magness alleges failed to effectively represent him was Ralph Blagg. The basis for the claim was that Blagg made a statement that Magness was in possession of a gun found at his residence. The statement was made during a pretrial hearing on a motion to suppress. The trial court found that, because the statement was made as part of an argument to establish standing to challenge the search, the decision to make the statement was a reasonable strategic decision.
IfiThe search at issue in the hearing was conducted at a cabin owned by Leo Phillips. Phillips testified at the pretrial hearing and at trial that the gun found in the cabin was his. The trial court noted in its order that Blagg had made the statement in response to a question concerning his client’s standing to challenge the search. The court found that the statement was made as a strategic decision that the statement was necessary to establish standing to challenge the search. We need not determine, however, whether Blagg’s performance was deficient when he made the statement because it is clear that Magness failed to demonstrate prejudice from Blagg’s statement.
Magness is incorrect in his assertion that the State had a burden to demonstrate that he was not entitled to relief. As noted above, it is the petitioner who must show both deficient performance by counsel and prejudice in order to warrant relief on a claim of ineffective assistance. Unless a petitioner under Rule 37 makes both required showings under the Strickland analysis, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883. There is therefore no reason for a court deciding an ineffective-assistance claim to address both components of the inquiry if the petitioner fails to make a sufficient showing on one. Id.
Here, Magness did not carry his burden to demonstrate facts in support of his claim that he was prejudiced by counsel making the statement. He offered no alternative argument that counsel should have presented in order to have established standing to challenge the search, or to have changed the outcome of the pretrial hearing. In the petition, he appears to contend that the remark was at odds with his position at trial that he had no knowledge of the gun. However, | fiBlagg’s concession on that issue, if it were one, was not mentioned to the jury, there was no reference to it at trial, and the jury was instructed to determine the facts based on the evidence at trial. So, Magness failed to establish any basis for the remark having an impact on the jury’s decision.
Magness alleges that trial counsel, Mel Jackson, was ineffective for filing a motion that was “stolen” from appellant, for leaving a hearing and causing appellant to have to represent himself, for moving to withdraw in front of the jury, for causing appellant to object to evidence and to file a pro se notice of appeal, and for committing suicide. We agree with the trial court’s conclusion in its order denying relief that Magness did not plead facts that were supported by the record for these claims. We further agree with the trial court’s conclusions that Magness did not demonstrate prejudice from the claims, did not satisfy the Strickland standard, and failed to identify specific acts or omissions of trial counsel^ which, when viewed from counsel’s perspective at the time of the trial, were not the result of reasonable professional judgment.
Magness contended that Jackson was ineffective because a motion that Jackson filed to dismiss without prejudice was “stolen” from appellant. The motion at issue asserted the same claims that Magness had stated in a pro se motion to dismiss without prejudice filed a few days before counsel’s motion. As the trial court’s order indicates, the two pleadings were argued and considered together during a pretrial hearing. Magness did not, either in the petition or in the hearings, meet his burden to demonstrate that this action by counsel could not have been the 17result of reasonable professional judgment.
As the trial court noted in its order, the record does not support Magness’s claim that Jackson left a hearing before the proceedings concluded. No hearing occurred on the date for the hearing in the petition. There was a hearing the day before that date discussing a continuance. Magness appeared to contend during one of the hearings on the Rule 37.1 petition that it was this hearing that he meant to reference. The record indicates, however, that Jackson appeared for Magness at the continuance hearing. The record does not reflect that Jackson left that hearing prior to its conclusion or that he left any other hearing before it was concluded. Even if Jackson had left during the continuance hearing, Magness again pointed to no prejudice from that action. In the hearing, the court reaffirmed that it had already granted a continuance to the State. The court indicated that there would therefore be no hearing or trial the next day as had been previously scheduled. Jackson’s presence or absence at the hearing would not have changed what occurred in the hearing or at trial.
The record also does not reflect that Jackson moved to withdraw as counsel in front of the jury. Jackson did move to withdraw, but the discussion that Magness referenced occurred during an in camera hearing conducted while the jury was in recess. According to the record, Magness only points to remarks made at a time when the jury was absent. Magness did not identify any references to Jackson’s request to withdraw that occurred while the jury was present in the courtroom.
Magness alleges generally that Jacks on failed to make evidentiary objections, and Magness specifically alleges that Jackson failed to object to the introduction of State’s exhibit number 27. |sThe State contends that Magness did not obtain a ruling on this issue. To the extent that the trial court’s general findings on Jaek- son’s assistance may have addressed the issue, we agree with those findings that Magness failed to satisfy the Strickland standard.
Exhibit 27 was a pornographic drawing that appears to have been admitted with other materials from the search at Magness’s residence. The drawing was separately numbered, and it was recognized as having previously been admitted during Magness’s cross-examination. This was the only specific omission by counsel identified in regard to an evidentiary objection. Magness did not allege any basis on which counsel might have successfully opposed the introduction of the evidence. A petitioner does not demonstrate the requisite prejudice for a claim of ineffective assistance based on the failure to make an objection if he does not establish that counsel could have made a successful objection. Davis v. State, 2013 Ark. 118, 2013 WL 1091189 (per curiam). Magness did not demonstrate any basis for a successful objection.
Magness’s claim that Jackson was ineffective because Jackson’s actions caused Magness to file a pro se notice of appeal also fails because Magness alleged no facts to demonstrate prejudice. Magness alleged that Jackson withdrew as counsel after the trial. Magness then filed a pro se notice of appeal. Magness alleged that Jackson moved to vacate his withdrawal, and Jackson did file a timely notice of appeal. The appeal was perfected, and Magness was not denied his direct appeal.
In his brief, Magness argues that he was prejudiced because he was entitled to self-representation. The argument was not included in his Rule 37.1 petition, and it does not appear to have been made at any hearing. We have routinely held that we will not hear arguments raised |flfor the first time on appeal. Nooner v. State, 339 Ark. 253, 4 S.W.3d 497 (1999). Even if Magness’s arguments during the hearings on the petition could be construed to raise the issue, the trial record contains no request by Magness to waive his right to counsel. See Walton v. State, 2012 Ark. 336, 423 S.W.3d 56 (“A defendant in a criminal case may invoke his right to defend himself pro se provided that (1) the request to waive the right to counsel is unequivocal and timely asserted; (2) there has been a knowing and intelligent waiver; and (3) the defendant has not engaged in conduct that would prevent the fair and orderly exposition of the issues.”). Magness did not demonstrate prejudice from Jackson’s actions.
Magness alleged in his petition that Jackson’s suicide supported a vague claim that Jackson’s mental condition somehow negatively affected counsel’s performance at trial. Magness also argues on appeal that Jackson was somehow ineffective for committing suicide or having the mental condition that led to his suicide. The State contends that Magness did not preserve this issue for appeal because he did not obtain a ’ ruling on it. To the extent that the trial court’s general ruling that Jackson was not ineffective may be construed to address the issue, Magness did not satisfy the Strickland standard. Magness did not point to any specific actions or omissions resulting from Jackson’s alleged mental state during the trial, other than those already discussed. He therefore failed to carry his burden to overcome the presumption that Jackson was effective.
Magness’s final claim of ineffective assistance was that appellate counsel, Jason Andrew Jouett, was ineffective. Magness claimed that Jouett advanced a different argument on appeal than what was raised at trial. In the opinion on direct appeal, the court of appeals declined to | inconsider the argument that there was insufficient evidence of fourth-degree sexual assault because that argument was not the one raised in the motion for directed verdict. Magness, 2012 Ark. App. 609, 424 S.W.3d 395. The argument considered on the motion for directed verdict was that the State had failed to present sufficient evidence of the victim’s age at the time of the crime. At trial, the victim and her mother had both testified as to the victim’s age at the time of the sexual assault. The victim’s testimony alone was sufficient to have supported the verdict. Breeden v. State, 2013 Ark. 145, 427 S.W.3d 5.
The failure to make an argument that is meritless is not ineffective assistance of counsel. Mitchell v. State, 2012 Ark. 242, 2012 WL 1950257. The petitioner who claims that appellate counsel was ineffective bears the burden of making a clear showing that counsel failed to raise some meritorious issue on appeal. State v. Rainer, 2014 Ark. 306, 440 S.W.3d 315. Magness failed to support his claim that appellate counsel had failed to raise a meritorious argument. The argument that Magness- contends counsel should have raised was without merit. The trial court did not clearly err in denying postconviction relief on this claim.
Finally, Magness argues on appeal that the trial court erred in ruling that his last ground for relief in the petition was not cognizable in a Rule 37.1 proceeding. He contends that, because the order cited a case that was handed down after he filed his petition, the rule of law should not be applicable to him. The rule of law that Magness contends was not applicable, however, was not new.
Magness alleged the search of his residence was unconstitutional because the officers conducted a warrantless search, that the warrant was defective, and that the evidence from the |n search should not have been admitted. It is well settled that the Rule does not provide a method for review of mere trial error. Taylor v. State, 297 Ark. 627, 764 S.W.2d 447 (1989). Those issues not so fundamental as to render the judgment void and open to collateral attack are waived if not raised at trial or on appeal. Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934 (1980). More specifically, Rule 37.1 is not a means to challenge the admissibility of evidence. Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995). Rule 37.1 does not permit a direct attack on a judgment. Mingboupha v. State, 2011 Ark. 219, 2011 WL 1805339 (per curiam). Assertions of trial error, even those of constitutional dimension, must be raised at trial and on appeal. Green v. State, 2013 Ark. 455, 2013 WL 5968933 (per curiam).
Magness failed to demonstrate that the trial court was clearly erroneous in summarily denying postconviction relief. Accordingly, the trial court’s order dismissing and denying postconviction relief is affirmed.
Affirmed; motion denied.
. Magness filed the motion more than four months after filing his reply brief. A request for an oral argument is not timely under Arkansas Supreme Court Rule 5-1 (a) (2014) if not filed contemporaneously with the appellant’s brief. Ferguson v. State, 342 Ark. 273, 26 S.W.3d 787 (2000) (per curiam) (holding that a request for oral argument must be made contemporaneously with the filing of the brief).
. Magness filed a motion for leave to amend the petition, motions to compel, and a number of responses to the State's pleadings. The State filed a response to the petition and other pleadings and a motion for summary disposition.
. Magness contends that the petition was summarily dismissed under Rule 37.3(a). Under Rule 37.3(a), the trial court is to specify the parts of the files or record that are relied on to sustain the court's finding that the petitioner was entitled to no relief. The court provided Magness with an opportunity to develop his claims in the hearings, however. It proceeded under Rule 37.3(c).
. Magness’s arguments on appeal that Jackson was ineffective follow a slightly different order from the claims listed in the petition. The points also appear to group issues together in an ambiguous and confusing manner, as the State notes. For clarity, we address the issues in the order as listed in the petition and the court's order addressing it. | [
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CLIFF HOOFMAN, Judge
| Appellant Brandi Horton appeals from the July 10 and July 30, 2014 orders filed by the Franklin County Circuit Court in favor of appellee, Shawn Ray Parrish. On appeal, appellant’s sole contention is that the trial court erred in modifying the divorce decree and awarding appellee custody of the parties’ minor children against their best interest. We affirm.
Parrish and Horton were divorced in June 2010. They had four children together, D.P., M.P., K.P., and G.P. The June 8, 2010 divorce decree specifically awarded joint custody of the children “with the Defendant Brandi [Horton] being the primary custodian with reasonable final authority over decisions regarding the children except the primary residence of the children and school enrollment of the children which shall be by unanimous consent of the Parties or order of this Court.” The trial court ordered that neither party pay child support and that actual physical custody of the children alternate weekly or as they may agree. If there was a dispute as to holidays or other special occasions, the trial court ordered |2that the standard order for visitation would apply. Subsequently, on June 23, 2010, the trial court filed a nunc pro tunc order requiring the children to be enrolled in the Alma School District until graduation or until a court order directs otherwise.
Horton filed a petition for modification of custody on April 10, 2012. In her petition, she alleged that she was seeking modification to allow her to babysit the children when Parrish was working, that Parrish had employed at least nine different babysitters during the last year and a half, that Parrish refused to provide her contact information for each babysitter, and that the trial court should require the parties to agree to each non-immediate family-member babysitter. Parrish filed his answer on April 18, 2012, and filed a counterclaim for contempt and a counter-motion to change custody. Parrish alleged that Horton continually made late payments on the vehicle she was awarded in the decree, causing his credit rating to be adversely affected. Additionally, he alleged that there was a material change in circumstances, that it was in the best interest of the children that he receive full custody with Horton receiving restricted visitation, and that Horton should be required to pay child support.
Horton filed an answer to Parrish’s countermotion on April 20, 2012, and an amended petition for modification of custody on May 13, 2013. In her amended petition, she alleged that Parrish had failed to inform her of the children’s medical and school issues when they were in his custody; that Parrish had placed the children in an unsafe environment with “guns and knives lying around when the youngest children were not properly supervised”; and that a material change in circumstances had occurred which required the children to be placed in her custody with Parrish paying child support. Parrish filed his response on May 16, 2013, |srequesting the dismissal and denial of the amended petition.
A two-day trial was held on October 8, 2013, and May 27, 2014, and the parties had several witnesses testify on their behalf. Gregory Roberts testified that he was a private professional, licensed counselor. On October 8, 2013, he testified that he had seen D.P. five times and had two family sessions with the parents. Horton brought D.P. to him because she found him to be defiant with her and she was having problems controlling him. He opined that D.P. was experiencing a “tic disorder” and attributed it to the dysfunction of the joint-custody arrangement. He further explained that he thought D.P. felt that he was required to have some loyalty for one parent over another and that it was very unhealthy for D.P. As part of the disorder, Roberts testified that D.P. was “pulling his hair out and pulling his fingernails nearly off,” indicating the amount of stress that D.P. was experiencing. He further opined that D.P. did not want to decide who he was going to be loyal to and that he felt pressure from Parrish to do so, either directly or inadvertently.
Roberts opined that he did not think joint custody was in the best interest of D.P. and expressed concerns about the children’s placement in Parrish’s custody. He stated that he was concerned with the lack of communication Parrish had with Horton. However, he did not express the same concerns about placing the children in Horton’s custody. After the trial court questioned Roberts regarding whether any of the other children exhibited any problems, Roberts answered that he was not aware of any issues or disorders with the other children. On the second day of the trial, Roberts testified that D.P. had expressed to him that he wished to live with his father, but Roberts still felt that the mother’s home was more [¿appropriate for D.P.
Horton testified that after the divorce, she married Landon Horton. Because Landon had sufficient income, she would be able to stay at home with the children. She testified that she agreed to joint custody only because it was her understanding that she would primarily make the decisions about day-to-day matters. When she discovered that there had been several different babysitters watching the children when Parrish was unable to do so, she not only felt that she was entitled to know the information about who was babysitting the children, but also felt that they would have been better off at home with her rather than with a babysitter. However, if she was not allowed to babysit the children, she felt that the children should be placed in a daycare or preschool, and she testified that she had provided Parrish with a name and phone number of someone she thought was reputable.
Horton further expressed her concerns over the availability of knives and guns while the children were in Parrish’s care. When she dropped off one of the children with the babysitter, she observed that her eldest son had a pocket knife that he said was his, and she found a gun in the bedroom upon further inspection of Parrish’s home. However, she did not know what type of gun it was. She also disagreed with Parrish’s decision to buy the two oldest children pistols for Christmas, when they were only ten and eleven years old.
She testified that Parrish did not provide enough discipline and structure for the children when they were with him. Additionally, she testified that communication with Parrish in general was difficult. For example, Parrish did not tell her that he picked up one son from school sick until later that evening. She testified that if she had known sooner, she |r,could have made better decisions and told him what he should have done next. She explained that Parrish felt that she was asking for over-communication, but she felt that it could not hurt to “over-communicate” about the children, especially when it was medically or school related.
Parrish admitted that he had nine babysitters; however, he testified that one of the babysitters was his girlfriend and the others were not strangers. In fact, many of them were cousins. Furthermore, since issues were raised regarding the babysitters, he had been having his father babysit the children, and he never witnessed his father say anything negative about Horton in front of the children.
Parrish admitted that he had bought the children two pistols but stated that the children did not own them yet because of their ages. Additionally, he purchased a gun safe about a year-and-a-half prior to his testimony on October 8, 2013. He testified that Horton had expressed her concerns to him about BB guns and air-soft guns being left out. He explained that the incident Horton described during her testimony involved an air-soft gun that was used by the children with the babysitter supervising, that it was emptied as soon as they were finished, and that it was then placed on the bed in its empty state. The babysitter confirmed that it was an air-soft gun during her testimony at trial. Furthermore, Parrish testified that he did not let the children carry the pocket knives all the time and that they are typically locked up. The children had never been hurt by either the air-soft guns or the pocket knives. He further testified that the children did not have access to the guns unless an adult was present.
| (Additionally, Parrish testified that D.P. had expressed that he wanted to live with him and that he did not want to live with Horton full time. D.P. did not exhibit the same behavioral issues that Horton described while in his custody, and Parrish testified that he had not witnessed D.P. pulling his hair. He also testified that Horton tried to dictate everything that he did with the children rather than accepting the joint-custody agreement, that she would fail to communicate the times for the children’s doctor and dental appointments, and that he felt that she was alienating the children from him and his family. He changed his job to allow him to be more flexible and more involved with the children, and therefore, he felt that it was in the best interest of the children to be placed with him rather than with Horton.
Carol Parrish testified that Parrish is her son and that she saw her grandchildren approximately three days a week. She experienced an altercation with Horton regarding the children’s visitation with her and her husband. Horton told her that she did not want her to babysit the children and that Carol would never see the children again if she were to gain full custody.
After the trial, the trial court specifically found in its detailed order filed on July 10, 2014, that a material change in circumstances had occurred. Additionally, the trial court made the following specific findings:
The mother has taken the designation of “primary custodian” and used it as a sword and shield to the detriment of the joint custody arrangement and to the detriment of the children and their relationship with the father.
This Court’s order envisioned equal time with both parents. The mother has used her primary designation to dimi[ni]sh the quality of the father’s time with his children through her desire to be in control of each aspect of the children’s lives, even when they are not in her care. The evidence submitted by the mother regarding alleged dangerous situations such as guns, knives, air soft guns, four wheeler safety |7equipment, etc. would leave the uninformed with the impression that the father was unconcerned with the safety of his children. This Court finds his concern in these respects proper and appropriate. However, this Court finds that the mother’s assertion that the father is acting inappropriately is an example of her overbearing and controlling nature.
This case was reopened initially based on the mother’s demand to be given first right to babysit the children. There was no such provision in the parties’ Decree and this Court could have ordered such, but did not.
The mother, by virtue of her most recent marriage has, according to her testimony, no longer the need to work. She has the time to devote to her children that would otherwise have been spent at a place of employment. She adopted the idea that she should thus be entitled to have the children at any time the father was at work. The father rightly refused her request as his lifestyle required continual employment and he had arranged his time with the children to include babysitters. In her pleading and at trial the mother placed much emphasis on the number of babysitters used by the father. I have looked at the testimony and evidence and I find that the father has used relatives when he could. I looked at the duration of each employment period of the various babysitters as well as their geographic location and the resulting impact of travel time. There is nothing that causes me to believe that the father has failed with regard to providing adequate care for his children as same concerns the babysitters, in either number of sitters, quality, or geographic location. Under the circumstances of this case the mother’s demand for right of first refus al in babysitting was not within the realm of “reasonable final authority” as it directly and negatively would have impacted the father’s share of equal time. This scenario is an example of how the mother uses her designation as “primary custodian” as an offensive weapon. It has certainly been proven to this Court that the mother has very little good to say to or about the father and that she has no respect for his position as parent to those children.
As noted above, the credibility of the witnesses was determined by this Court and the mother’s credibility is decreased by her tendency to overreact and over emphasize certain aspects of this case. As an example, she has asserted that the oldest child, [D.P.] has suffered emotionally from the stress of the parents’ inability to get along, and she places the blame on the father.
To support this assertion, in her pleadings, testimony, and most recently her post-trial briefs/closing arguments, she claims that [D.P.] has exhibited physical manifestations of the stress by “pulling hair and fingernails out.” While this assertion is certainly an attention-getter for any Court, there is simply no evidence to support such activity by the child “post divorce.” While there is some evidence of tugging at his hair or picking at his fingernails, this is a far cry from the mother’s characterization of the child’s actions. As a result of my overall observations, this Court finds that with regard to any point of contention regarding the parties’ recollection of events the father is found to be' more credible, and thus his testimony is afforded more weight.
|sIt is worthy of note that [D.P.’s] counselor, while in support of the mother’s case, pointed out that [D.P.] had issues. However, the counselor was never able to clearly assert that [D.P.’s] issues resulted only from his environment and not from some malady personal only to the child. The mother places a large amount of emphasis on [D.P.’s] issues and asserts that the problems are a result of the father’s failures. There are four children between these parties and there is no evidence of any of the other children experiencing hair pulling, hair tugging, nail picking or fingernail removal. Further, the mother’s assertion that the father has worked to alienate [D.P.] from her and to reduce her authority is unfounded.
VII.
I find that it is in the best interest of the children that the previous Order of this Court be modified. Equal time, joint custody is not workable between these parties. In determining the best interest of the children, with regard to custody, I adopt, as if set out herein, my findings in the previous sections of this Order. In addition, I find that, as between the two parents, the mother is less likely to foster a positive relationship should she be given full custody of the children. Of note in this regard is the allegation that the mother stated to the paternal grandparents that “if she (mother) received custody they would not see the children.” Of all the testimony I heard in this case the most credible was of the paternal grandmother’s recollection of this statement. I find the mother said it, that she meant it, and her history of control would result in her carrying out the threat to whatever extent she had available to her as the. custodial parent.
Horton filed a motion for reconsideration and new trial on July 16, 2014. After Parrish filed a response on July 23, 2014, the trial court filed a detailed order denying the motion for new trial on July 30, 2014. On August 25, 2014, an agreed amended order was entered, specifically addressing the amount of child support and the method for payment. However, the order noted that any other provisions not specifically amended remained in full force and effect. This timely appeal followed.
In reviewing child-custody cases, we consider the evidence de novo, but we will not reverse the trial court’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. McNutt v. Yates, 2013 Ark. 427, 430 S.W.3d 91. It is well |flsettled that the primary consideration is the welfare and best interest of the child, while other considerations are merely secondary. Id. We give special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child-custody cases, and this deference to the trial court is even greater in cases involving child custody, as a heavier burden is placed on the trial court to utilize to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Id.
The party seeking modification of the custody order has the burden of showing a material change in circumstances. Evans v. McKinney, 2014 Ark. App. 440, 440 S.W.3d 357. Generally, courts impose more stringent standards for modifications in custody than they do for initial determinations of custody to promote stability and continuity in the life of the child and to discourage repeated litigation of the same issues. Id. Once the trial court determines that the threshold requirement of a material change in circumstances since the last order of custody has been met, the trial court must then determine who should have custody with the sole consideration being the best interest of the children. Id. The factors that a trial court may consider in determining what is in the best interest of the children include the psychological relationship between the parents and children, the need for stability and continuity in the relationship between parents and children, the past conduct of the parents toward the children, and the reasonable preference of the children. Bamburg v. Bamburg, 2014 Ark. App. 269, 435 S.W.3d 6.
On appeal, appellant’s sole contention is that the trial court erred in modifying the 110divorce decree and awarding appellee custody of the parties’ minor children against their best interest. Appellant does not contest the trial court’s finding that there was a material change in circumstances. Instead, she disagrees with the trial court’s findings as to best interest and argues that she should have been awarded custody. Because there are no cases in which the superior position, ability, and opportunity of the trial judge to observe the parties carry a greater weight than those involving the custody of minor children, our deference to the trial court in matters of credibility is correspondingly greater in such cases. Evans, supra. Here, the trial court specifically found that Parrish’s and the paternal grandmother’s testimony was credible and afforded a greater weight. Furthermore, the trial court found that Horton was less likely to foster a positive relationship if she were to be given full custody of the children. Thus, based on the record before us and our standard of review, we cannot hold that the trial court committed clear error in its determination.
Affirmed.
Vaught and Brown, JJ., agree. | [
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PER CURIAM
hln 2012, Christopher Dodge was found guilty by a jury of three counts of rape and one count of attempted rape of a minor. An aggregate sentence of 1152 months’ imprisonment was imposed. The Arkansas Court of Appeals affirmed. Dodge v. State, 2013 Ark. App. 247, 427 S.W.3d 149.
Subsequently, Dodge sought postconviction relief in the trial court pursuant to Arkansas Rule of Criminal Procedure 37.1 (2012). The petition was denied, and Dodge appealed to this court. The appeal was dismissed. Dodge v. State, 2014 Ark. 116, 2014 WL 1096135 (per curiam).
On March 24, 2015, petitioner filed in this court the pro se petition that is now before us seeking leave to proceed in the trial court with a petition for writ of error coram nobis. After |2a judgment has been affirmed on appeal, a petition filed in this court for leave to proceed in the trial court is necessary because the circuit court can entertain a petition for writ of error coram nobis only after we grant permission. Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001) (per curiam).
A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Hooper v. State, 2015 Ark. 108, 458 S.W.3d 229 (per curiam). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. McDaniels v. State, 2012 Ark. 465, 2012 WL 6218480 (per cu-riam). We have held that a writ of error coram nobis is available to address certain errors that are found in one of four categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or a third-party confession to the crime during the time between conviction and appeal. Charland v. State, 2013 Ark. 452, 2013 WL 5968924 (per cu riam) (citing 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 that would have prevented its rendition if it had been known to the circuit court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment. Chestang v. State, 2014 Ark. 477, 2014 WL 6065634 (per curiam); McFerrin v. State, 2012 Ark. 305, 2012 WL 3366058 (per curiam). The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Wright v. State, 2014 Ark. 25, 2014 WL 260993 (per curiam). Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.
In his petition, Dodge first asserts that he is entitled to issuance of a writ of error coram | ¡¡nobis because Arkansas’s postconviction remedy pursuant to Arkansas Rule of Criminal Procedure 37.1 does not afford indigent defendants a “meaningful review” of claims of ineffective assistance of counsel pertaining to appellate counsel. He further appears to make the conclusory allegation that he was denied effective assistance of counsel at trial. Neither assertion is a ground for the writ. Any challenge Dodge desired to raise to this State’s postconviction remedy embodied in Rule 37.1 could, and should, have been raised under the Rule. As to any allegation that Dodge may have intended to raise in the petition which could be construed as a claim that he was not afforded effective assistance of counsel at trial or on direct appeal, we have repeatedly held that a petition for writ of error coram nobis is not a substitute for raising claims of ineffective assistance of counsel under Rule 37.1. Mason v. State, 2014 Ark. 288, 436 S.W.3d 469 (per curiam).
Dodge next contends that the writ should issue on the ground that his coerced, illegally obtained confession was utilized at his trial to gain the conviction against him. He argues that the use of a coerced confession to obtain a judgment is tantamount to a coerced guilty plea, and, thus, the issue is within the purview of a coram-nobis proceeding. There is no merit to Dodge’s argument. The allegation is not cognizable as a ground for coram-nobis relief. Even if the issue of whether Dodge’s statement to police should have been suppressed had not been raised at his trial and addressed on direct appeal, the claim amounts to an argument of trial error. Assertions of trial error are outside the scope of a coram-nobis proceeding. Lukach v. State, 2014 Ark. 451, 2014 WL 5493961 (per curiam). Moreover, coram-nobis proceedings do not provide a petitioner with a forum to relitigate trial or appeal issues. See Watts v. State, 2013 Ark. 485, 2013 WL 6157325 (per curiam) (holding that this 14 court does not consider in a coram-nobis action allegations that are an attempt to reargue issues addressed on appeal).
Finally, Dodge makes a con-clusory reference to material having been withheld by the prosecution in his case. While the established withholding of exculpatory evidence from the defense in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), is a ground for the writ, the petitioner raising a Brady claim must present factual substantiation for the allegation. Here, Dodge does not state what evidence was withheld or otherwise offer any proof to support the claim. This court is not required to take claims of a Brady violation in a coram-nobis petition at face value without substantiation. Mackey v. State, 2014 Ark. 491, 2014 WL 6602313 (per curiam). The application for coram-nobis re lief must make a fall disclosure of specific facts relied upon. Maxwell v. State, 2009 Ark. 309, 2009 WL 1423908 (citing Cloird v. State, 357 Ark. 446, 182 S.W.3d 477 (2004)).
As stated, the function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not.brought forward before rendition of the judgment, and the petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Dodge here has not met that burden.
Petition denied.
. When a judgment has been affirmed on appeal, a petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis is docketed in this court under the docket number for the direct appeal. See Mooney v. State, 2014 Ark. 453, 447 S.W.3d 121 (per curiam). | [
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WAYMOND M. BROWN, Judge
11 Gary Don Arwood appeals from the Board of Review’s denial of his unemployment benefits. Arwood worked for the employer as a customer-service representative and delivery driver from September 22, 2012, to May 16, 2014, at which time he was discharged for violating a policy prohibiting employees from discussing salary and wages with other employees. The employer’s general manager was initially tasked with reprimanding Arwood, but instead, terminated his employment after finding a piece of paper she believed he was using to account for money he had taken from the company’s cash drawer.
|2The Department of Workforce Services allowed benefits, and the Appeal Tribunal affirmed, concluding that Arwood was discharged for reasons other than misconduct in connection with his work. The Board of Review reversed the Appeal Tribunal’s decision, finding that he was discharged for misconduct due to his oral statements. Hence, the issue before us is whether Ar-wood’s actions constituted work-related misconduct sufficient to bar him from receiving unemployment compensation. We do not believe his actions rise to such a level and reverse and remand the Board of Review’s decision with instructions to award benefits.
A person shall be disqualified from receiving unemployment benefits if it is determined that the person was discharged from his or her last work on the basis of misconduct in connection with the work. The employer has the burden of proving by a preponderance of the evidence that an employee engaged in misconduct. For the purposes of unemployment compensation, misconduct is defined as (1) disregard of the employer’s interest, (2) violation of the employer’s rules, (3) disregard of the standards of behavior which the employer has a right to expect, and (4) disregard of the employee’s duties and obligations to the employer. However, the definition of misconduct requires more than mere inefficiency, unsatisfactory conduct, failure in good performance as a result of inability or incapacity, inadver-tencies, ordinary negligence in isolated incidents, |3or good-faith errors in judgment or discretion. Conduct that may well provide a sufficient basis for the discharge of an employee may not be sufficient to deny that employee unemployment benefits. To conclude that there has been misconduct for unemployment-insurance purposes, we have repeatedly required an element of intent: mere good-faith errors in judgment or discretion and unsatisfactory conduct are not misconduct unless they are of such a degree or recurrence as to mani fest culpability, wrongful intent, evil design, or intentional disregard of an employer’s interest.
In the instant case, the employer has a policy prohibiting its employees from discussing salary and wages, specifically stating as follows: “Discussing with other team members salary/wages which will result in automatic termination.” The employer alleged and Arwood testified that he stated to another employee, “Did you get your bonus cause I just got mine?” He further testified that he did not know talking about his bonus was against the employer’s policy because he did not believe his bonus had anything to do with salary or wages, and he maintained that his bonus was a reward that differed from his usual pay because it did not occur regularly. We agree with Arwood and believe that such a statement in regard to his bonus amount was no more than an isolated instance of ordinary negligence or a good-faith error in judgment.
The employer also presented conflicting evidence as to the reason for Arwood’s discharge. Initially, the employer’s vice-president testified that he was discharged for ^discussing his bonus. However, his testimony revealed that he instructed the general manager to present Arwood with a written reprimand. He later altered the reasons for discharge to include the cash drawer incident, but the Board did not find that credible. Nevertheless, the Board found that Arwood intentionally violated the employer’s rules and disregarded its interests by discussing his bonus with another employee, amounting to misconduct in connection with his work.
On appeal from the Board of Review, we do not conduct a de novo review; instead, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings of fact. We will affirm the Board’s findings if they are supported by substantial evidence, which is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether it could have reasonably reached its decision based upon the evidence before it. Our function on appeal, however, is not merely to rubber stamp decisions arising from the Board. We conclude that the facts presented in this case are not sufficient to support a finding of misconduct. Instead, the evidence demonstrates that Arwood’s asking another employee about his bonus amounted to a good-faith error in judgment or an isolated instance of ordinary negligence and that it |sdid not establish wrongful intent or evil design. Such conduct may be a sufficient basis for the discharge, but it is not a sufficient basis for the denial of unemployment compensation.
Reversed and remanded.
Vaught and Hoofman, JJ., agree.
. The Board of Review found that the employer was not credible and provided insufficient evidence to substantiate allegations surrounding the piece of paper and the cash drawer, and therefore, it is not important for purposes of our appeal.
. Ark.Code Ann. § 11 — 10—514(a)(1) (Repl. 2012).
. Grigsby v. Everett, 8 Ark. App. 188, 649 S.W.2d 404 (1983).
. Clark v. Dir., Employment Sec. Dep’t, 83 Ark. App. 308, 126 S.W.3d 728 (2003).
. Price v. Dir., Ark. Dep’t of Workforce Servs., 2013 Ark. App. 205, 2013 WL 1232103.
.Id.
. Id.
. West v. Dir., 94 Ark. App. 381, 231 S.W.3d 96 (2006).
. Id.
. Id.
. Millspaugh v. Dir., Ark. Dep’t of Workforce Serv’s., 2013 Ark. App. 450, 2013 WL 4557434. | [
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JOSEPHINE LINKER HART, Associate Justice
1Ray Hobbs, the Director of the Arkansas Department of Correction (the State), appeals from an order granting habeas-corpus relief to Aaron Hodge. Hodge was convicted of capital murder for the shooting deaths of his mother, Barbara Flick, his stepfather, David Flick, and his half-sister, Andria Flick, in their home at Rector. Hodge was sentenced to life imprisonment without parole. Hodge v. State, 332 Ark. 377, 382, 965 S.W.2d 766, 768 (1998). Hodge later sought habeas-corpus relief, and following a hearing at which no evidence was presented, the court granted relief to Hodge, concluding that he was entitled to relief under Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). The State argues that the circuit court erred in granting him relief because Miller is inapplicable. Further, the State argues that the court erred in granting Hodge relief without making a finding of probable cause and following the procedures outlined in our habeas-corpus statutes. After considering the latter point, we 12reverse and remand the circuit court’s decision without addressing the applicability of Miller.
In his habeas-corpus petition, Hodge cited Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), where the United States Supreme Court held that a mandatory sentence of life imprisonment without parole for those under the age of eighteen at the time the juvenile committed a homicide crime violated the Eighth Amendment’s prohibition on cruel and unusual punishments. Hodge attached to his petition a certified copy of an amended judgment and commitment order reflecting that Hodge’s date of birth is April 19, 1978, and that the offense date for the capital murder was October 8, 1995, making him, according to the order, seventeen years old at the time he committed the homicides. Hodge argued that Miller should be retroactively applied to his case.
Citing Arkansas Code Annotated section 16-112-103(a)(1) (Repl. 2006), the State asserted that it was not required to file a “return,” unless the circuit court first found that the petition showed “by affidavit or other evidence, probable cause to believe he or she is detained without lawful authority.” The State presented what it described as a “memorandum of authorities to assist the Court in that determination.” The State argued that Hodge’s claim was not cognizable under Arkansas’s habeas-corpus statutes and that, even if his claim was cognizable, he was not entitled to relief because Miller did not apply retroactively.
The circuit court entered an order directing the sheriff of Lee County to take custody of Hodge from the Department of Correction and bring Hodge to the hearing. The court’s order further stated that, “[ajlternatively, should the Department so prefer, it may itself undertake to transport Inmate Hodge to and from the hearing.” A hearing was held at which [3the court jointly considered a petition filed by James Grubbs, who was also represented by Hodge’s counsel. Hodge’s counsel presented argument to the court on behalf of Hodge and Grubbs, but no evidence was submitted to the circuit court. The court asked the attorneys for the State whether there was a dispute regarding whether either Hodge or Grubbs was under the age of eighteen at the time of the offense, and the State replied, “[I]f we ultimately say it was acceptable in a probable-cause hearing, we would want to have a certified vital record proving their age. But, ultimately, we do believe that they were underage at the time.”
The court requested posthearing briefs and proposed orders from both parties. In a response to both Hodge’s and Grubbs’s petition, the State again cited Arkansas Code Annotated section 16-112-103(a)(1), and stated that “it must be emphasized that the only question presently before the Court is whether petitioners’ applications for the writ sufficiently demonstrate probable cause to believe they are confined in the penitentiary without lawful authority.” The State argued in its brief that because their Miller claims were not cognizable and because Miller is not retroactively applicable, Hodge and Grubbs had not demonstrated probable cause to issue the writ and that their petitions should be dismissed.
The circuit court entered an order vacating Hodge’s sentence of life imprisonment without parole and remanded the matter to the Craighead County Circuit Court for resentencing proceedings. The court found that Hodge was convicted of homicides committed before he attained the age of eighteen years and that he received a mandatory sentence of life imprisonment without parole. The court concluded that Miller applied retroactively and that |/‘habeas corpus is the proper procedural remedy.” We note, however, that the circuit court did not make a specific ruling on probable cause to issue the writ.
On appeal, the State argues that the circuit court erred when it found that Miller retroactively applied. Further, the State contends that the court erred because it issued its order granting habeas relief without first making a finding of probable cause or otherwise following the procedures set out in our habeas-corpus statutes. In response to this latter point, Hodge argues that he demonstrated probable cause by attaching a certified judgment-and-commitment order to his petition showing his date of birth and the date of the offense and that the State’s pleadings constituted a “return.” He notes that the circuit court entered an order directing the Lee County Sheriff to take custody of Hodge and bring him to the hearing and that the court conducted a hearing at which attorneys for the State — Hodge’s custodian — were present. He asserts that the court made a finding of probable cause and issued the writ by virtue of the order requiring his presence at the hearing and in its subsequent order granting him relief.
We conclude that the State’s argument on this latter point is dispositive of this case. Here, the circuit court did not make a specific finding of probable cause or otherwise conduct other proceedings required by our habeas-corpus statutes. Those statutes provide that the “writ of habeas corpus shall be issued, served, and tried in the manner prescribed by this chapter.” Ark.Code Ann. § 16-112-101 (Repl. 2006). The “writ of habeas corpus shall be granted forthwith ... to any person who shall apply for the writ by petition showing, by affidavit or other evidence, probable cause to believe he or she is detained without lawful authority.” Ark.Code Ann. § 16-112—103(a)(1). The writ is “directed to the person in whose custody the ^prisoner is detained, and made returnable as soon as may be.” Ark.Code Ann. § 16—112— 105(b)(1) (Repl. 2006). The person on whom the writ is served has the duty to “bring with the writ all and every examination and information in his or her hands, possession, custody or charge, relating to the commitment.” Ark.Code Ann. § 16-112-109(a) (Repl. 2006). The “party brought before any court or judge, by virtue of any writ of habeas corpus,” may then “deny the material facts set forth in the return, or allege any fact to show either that his or her detention or imprisonment is unlawful, or that he or she is entitled to his or her discharge,” Ark.Code Ann. § 16-112-113(a) (Repl. 2006). Finally, the “judge before whom the writ is returned, after hearing the matter, both upon the return and any other evidence, shall either discharge or remand the petitioner, admit the prisoner to bail, or make such order as may be proper.” Ark.Code Ann. § 16-112-115 (Repl. 2006).
This case is analogous to Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. There, Gordon sought habeas-corpus relief, likewise arguing that he was entitled to it under Miller. Gordon alleged that his judgment and commitment order incorrectly stated his date of birth, and Gordon appended a certified copy of his birth certificate to his petition to support the allegation that he was a juvenile at the time he committed capital murder. As in this case, the State filed a response in which it asserted that it was not required to file a return until the court first made a determination of probable cause. The circuit court, however, granted Gordon’s petition, vacated Gordon’s sentence, and reinvested jurisdiction in the circuit court that rendered the judgment and commitment order for Gordon to be resentenced. The State argued on appeal that the circuit court failed to follow the mandatory procedures of our | ^habeas statutes, failed to issue the writ to the State, and erroneously granted relief from the underlying commitment. This court observed that the record demonstrated that the circuit court issued the writ but that it did not make a finding of probable cause to issue the writ. This court held, “Although the circuit court may have implicitly found that Gordon’s petition evidenced probable cause to issue the writ, the record demonstrates that a probable cause finding was not made. Our habeas statutes make clear that the circuit court must first make this probable-cause finding prior to moving forward with the remaining habeas procedures.” Gordon, 2014 Ark. 225, at 10-11, 434 S.W.3d 364, 370. This court then concluded that a “determination of whether probable cause is shown must be made for the circuit court to issue the writ,” and the court remanded the case to the circuit court for findings and any further proceedings required by the habeas statute. Id. at 11, 434 S.W.3d at 370.
Here, as in Gordon, the State filed a response stating that it was not required to file a return until a probable-cause determination was made. Like the circuit court, in Gordon, the court in this case made no express finding of probable cause and did not otherwise require the State to provide a return. As argued by the State, and in accordance with Gordon, rather than vacating Hodge’s sentence of life imprisonment and remanding for resentenc-ing, the circuit court first should have made a probable-cause finding. Furthermore, as argued by the State, the circuit court failed to conduct the other proceedings mandated by our habeas-corpus statutes. If the court had concluded that there was probable cause, the court would have then issued a writ directed to the person in whose custody Hodge is detained. Hodge’s custodian would have been required to make a return of the writ, and Hodge would have been able to deny the |7return. After hearing the matter, the court would then decide whether Hodge was entitled to a discharge. Thus, we reverse and remand for proceedings consistent with this opinion. Because we have reversed and remanded on this point, we do not address the remaining arguments made by the State.
Reversed and remanded.
Wood and Wynne, JJ., dissent.
. Today, we also address the appeal of Hobbs v. Grubbs, 2015 Ark. 205, 2015 WL 2330150. | [
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RAYMOND R. ABRAMSON, Judge
^Patricia Hernandez appeals the Arkansas Board of Review’s (Board) decision to deny her unemployment benefits. On appeal, Hernandez argues that the Board did not apply the current version of Arkansas Code Annotated section ll-10-514(a)(2) in making its finding and that substantial evidence did not support the Board’s conclusion. Based on our standard of review, we affirm the denial of benefits.
Hernandez began working in production at Simmons Foods, Inc. (Simmons) on March 23, 2013. She was discharged on February 10, 2014. The Department of Workforce Services (Department) issued a “Notice of Agency Determination” to the parties on March 6, 2014, denying Hernandez benefits under Arkansas Code Annotated section 11-10-514(a) upon finding that she was discharged from last work for misconduct in connection with the work. Hernandez filed a timely appeal to the Appeal Tribunal, which conducted a telephone hearing on April 10, 2014, and af firmed the Department’s determination. Hernandez then | appealed to the Board from the decision of the Appeal Tribunal. The Board, pursuant to section 11-10-514(a), found that Hernandez was discharged for misconduct and was therefore disqualified from benefits. The matter is now before this court.
Hernandez worked for Simmons for approximately ten months. Mary Doyle, Human Resources Director at Simmons, testified that the employer’s policy provided that employees who accumulated at least ten attendance points per year may be discharged, and that three consecutive days of absence without notification would result in termination of employment. Over the course of those ten months, Hernandez accumulated twenty-six and a half points based on her absences from work. Hernandez did not call or come in to work on February 6, 7, 8, or 10, 2014; she was terminated on February 10th for excessive absences and three days of not calling in or coming to work.
During her testimony, Doyle indicated that Hernandez received a copy of Simmons’s attendance point policy in Spanish. Doyle also stated that Hernandez was told during orientation about the policy regarding absences without notification, but she was not given a hard copy of the policy. According to Doyle, the no call/no show policy appears on two different slides that are shown at orientation.
Doyle also testified that Simmons normally gives employees written warnings when they reach four, six, eight, and ten points. Hernandez was given only one written warning — when she had accumulated six and a half points. Doyle testified that she and her supervisor held several meetings with Hernandez concerning her attendance and that Hernandez was allowed to exceed the ten-point maximum because she promised she would Ubring in doctors’ notes. Over the course of Hernandez’s employment and despite her numerous absences, Doyle received only one doctor’s note from Hernandez, which was in August 2013. Doyle testified that the decision to terminate Hernandez was made by her superior, the Human Relations Complex Manager, and that even if Hernandez had brought in all of her doctors’ notes as she had promised, she would still have been discharged because she failed to call in for three consecutive days prior to her termination.
Hernandez argues that the Board was required to apply the language of Arkansas Code Annotated section 11—10—514(a)(2), which was in effect in 2014, the date of her discharge. She asserts that the Board’s decision to deny benefits on an earlier version of the statute was an error of law. Therefore, she maintains that the Board’s conclusions of law are incorrect. Arkansas Code Annotated section 11—10—514 states, in pertinent part:
(a)(1) If so found by the Director of the Department of Workforce Sendees, an individual shall be disqualified for benefits if he or she is discharged from his or her last work for misconduct in connection with the work.
(2) In cases of discharge for absenteeism, the individual shall be disqualified for misconduct in connection with the work if the discharge was pursuant to the terms of a bona fide written attendance policy, regardless of whether the policy is a fault or no-fault policy.
(3)(A) Misconduct in connection with the work includes the violation of any behavioral policies of the employer as distinguished from deficiencies in meeting production standards or accomplishing job duties, and
(B) Without limitation:
(i) Disregard of an established bona fide written rule known to the employee; or
(ii) A willful disregard of the employer’s interest.
Ark.Code Ann. § 11-10-514 (Supp. 2013).
4Hernández argues that the Board, in its decision, cited an obsolete code when it wrote, “The claimant could still be denied benefits under Ark.Code Ann. § 11—10—514(a) if the claimant’s attendance record for twelve month period immediately preceding the discharge and the reasons for absenteeism amounted to misconduct.” She asserts that there was no such language or inquiry under the amended version of the code, which was in effect at the time she was discharged in 2014. While that may be correct, it does not invalidate the Board’s conclusions of law.
First, the Board does, in fact, cite to the language that Hernandez attests it should have referenced by citing “in cases of discharge for absenteeism, the individual will be disqualified if the discharge was pursuant to the terms of a bona fide written attendance policy regardless of whether the policy is a fault or no-fault policy, pursuant to Ark.Code Ann. § 11-10-514(a)(2).” The Board noted that, while the employer had a bona fide written attendance policy, the employer did not follow its policy in the instant case. Here, Hernandez was allowed to accumulate twenty-six and a half points, and she was not given four written warnings pursuant to the policy. The Board did not, as Hernandez contends, base its decision to deny benefits on an earlier version of the statute. While the decision does reference the claimant’s attendance record for the twelve-month period immediately preceding the discharge, the Board does not rely solely on that language as the basis for its decision.
5Hernández argues that the statute should be strictly construed and because Simmons did not follow its own attendance policy, then no misconduct existed. Appel-lee responds that if this argument were correct, it would lead to an absurd result since the only way unemployment benefits could be denied for attendance issues would be if the employer had a written policy. Our supreme court has held that “this court will not give statutes a literal interpretation if it leads to absurd consequences that are contrary to legislative intent.” Mamo Transp., Inc. v. Williams, 375 Ark. 97, 100, 289 S.W.3d 79, 83 (2008). Appellee is correct in its analysis: “It only stands to reason that if the employer has no written policy or fails to follow its written policy then the facts must be evaluated as to whether Hernandez’s behavior was a willful disregard of the employer’s interests.”
On appeal, the Board’s findings of fact are reviewed in the light most favorable to the prevailing party, and the Board’s decision is reversed only when the findings are not supported by substantial evidence. Occhuzzo v. Dir., Dep’t of Workforce Servs., 2012 Ark. App. 117, 2012 WL 386759. Our court has long held that, in order for an employee’s actions to constitute “misconduct” so as to disqualify him or her, the action must be a deliberate or willful disregard of the employer’s best interest or a disregard of a standard of behavior, which the employer has a right to expect of its employees. Exson v. Everett, 9 Ark. App. 177, 656 S.W.2d 711 (1983). Further, it is well settled that we have interpreted misconduct, as that term is used in the statute, to include (1) disregard of the employer’s interests, (2) violation of the employer’s rules, (3) disregard of the standards of behavior which the employer has a Fright to expect of his employees, and (4) disregard of the employee’s duties and obligations to his employer. Nibco, Inc. v. Metcalf, 1 Ark. App. 114, 118, 613 S.W.2d 612, 614 (1981).
Here, Hernandez’s absences were in disregard of the employer’s interests and thus amounted to misconduct in connection with the work. She accumulated twenty-six and a half points for absences — sixteen and a half points more than was normally allowed. Hernandez also missed three consecutive days, just prior to her termination, with no call in or explanation. Whether an employee’s actions constitute misconduct that justifies the denial of unemployment benefits is a question of fact for the Board to decide. Garrett v. Dir., Dep’t of Workforce Servs., 2014 Ark. 50, 2014 WL 495124.
The record in this case is clear. Hernandez’s continued absences and no-shows were in disregard of her duties and obligations to Simmons; as such, the Board was correct in disqualifying her from receiving unemployment benefits. When a Board decision is appealed to this court, the findings of the Board are conclusive if supported by substantial evidence. Mamo, supra. Substantial evidence is relevant evidence that reasonable minds might accept as adequate to support a conclusion. Jones v. Dir., Dep’t of Workforce Servs., 2014 Ark. App. 426, 439 S.W.3d 85. Even if the evidence could support a different decision, our scope of review is limited to whether the Board could have reasonably reached its decision based on the evidence presented. Id. We conclude that reasonable minds could have reached the same decision as that of the Board of Review; therefore, there is substantial evidence to support the Board’s decision.
UAffirmed.
Gladwin, C.J., and Harrison, J., agree. | [
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BART F. VIRDEN, Judge
11 James Green was found by the circuit court to have violated the conditions of his probation and was sentenced to thirty-six months in the Arkansas Department of Correction. For his only point on appeal, Green asserts that the circuit court committed reversible error by allowing testimony into evidence in violation of the Confrontation Clause. The State concedes that the Confrontation Clause was violated but contends that the court’s error was harmless. We affirm.
I. Facts
On March 16, 2006, Green pleaded guilty to furnishing prohibited articles, a class B felony, and was sentenced to forty-eight months’ supervised probation. He was ordered to pay fines, fees and court costs; enroll in and complete a program to attain a high school diploma | ?pr GED; report to his parole officer; avoid criminal behavior, and submit to drug testing. On October 26, 2007, the prosecuting attorney filed a petition to revoke Green’s probation on the grounds that he had failed to pay fines, costs, and fees, failed to report to his probation officer, failed to notify the sheriff and the probation officer of his current address and employment, and for possession and use of drugs. A warrant was issued on October 29, 2007. Green was arraigned on March 16, 2012, and a hearing was set for June 26, 2012. He failed to appear, and a bench warrant was issued. On July 31, 2013, he appeared again before the court, and the hearing was set for September 9, 2013.
At that hearing, Amy Peyton, who handles all the fees, fines, costs, and other court assessments at the Crittenden County Sheriffs Department, testified that Green never paid any of the $50-a-month installments of his fines, costs and fees, and that he never contacted the department.
Next, Mary Marshall, probation officer for the Department of Community Correction, testified that she received Green’s file the day of the hearing and- after reviewing it she saw that he had not paid his fines. Green’s attorney objected, stating, “She has never been the probation officer in this case. She received the file for court today, and therefore, she doesn’t have any personal knowledge.” The court overruled the objection. Marshall went on to testify that the one time Green reported to his probation officer on October 27, 2007, he tested positive for cocaine, opiates, and marijuana. Green’s attorney objected to Marshall’s testimony, citing the Confrontation Clause. Again, his objection was overruled. Marshall testified that Green never paid his fees, and he never reported to his probation officer again.
Green testified on his own behalf. He stated that during October 2007 he was | ¡-.¡homeless, using drugs, and that he had done odd jobs for people over the years. After completing a drug-rehabilitation program, he moved in with his father and credited having a stable place to live with his success in staying drug-free. After his father passed away in March 2013, he inherited his father’s house. He testified that he never paid fines, costs, or fees and that he did not report to his probation officer because prior to living with his father he was living in Memphis against the order of the court. When asked if he had done anything he was ordered to do, he testified that he “didn’t do anything.”
Green was found to have violated the conditions of his probation and was sentenced to thirty-six months in the Arkansas Department of Correction. A timely notice of appeal was filed September 11, 2013.
II. Standard of Review
The State must prove by a preponderance of the evidence that appellant violated a condition of probation. Williams v. State, 351 Ark. 229, 233, 91 S.W.3d 68, 70 (2002). But it need only prove that a defendant violated one probationary term or condition before a circuit court may revoke probation. Rudd v. State, 76 Ark. App. 121, 124, 61 S.W.3d 885, 888 (2001). We will not reverse the circuit court’s findings unless they are clearly against the preponderance of the evidence. Williams, 351 Ark. at 234, 91 S.W.3d at 70. Evidence that would not support a criminal conviction in the first instance may be enough to revoke probation or a suspended sentence. Id., 91 S.W.3d at 70. Determining whether a preponderance of the evidence exists turns on questions of credibility and weight to be given to the testimony. Id., 91 S.W.3d at 70-71.
III. Confrontation Clause
4In Goforth v. State, 27 Ark. App. 150, 152, 767 S.W.2d 537, 538 (1989), this court set forth the right to confront the witness during a revocation hearing:
Although in a revocation hearing a defendant is not entitled to the full panoply of rights that attend a criminal prosecution, he is entitled to due process. Because due process is a flexible concept, each particular situation must be examined in order to determine what procedures are constitutionally required.
In Gagnon v. Scarpelli, 411 U.S. 778 [93 S.Ct. 1756, 36 L.Ed.2d 656] (1973), the United States Supreme Court held that in a revocation proceeding the accused is entitled to the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation). This holding has been codified at Ark.Code Ann. § 5—4—310(c)(l) (1987) which states:
The defendant shall have the right to confront and cross-examine adverse witnesses unless the court specifically finds good cause for not allowing confrontation.
In a probation revocation proceeding the trial court must balance the probationer’s right to confront witnesses against grounds asserted by the State for not requiring confrontation. First, the court should assess the explanation the State offers of why confrontation is undesirable or impractical. A second factor that must be considered, and one that has been focused on by a number of courts, is the reliability of the evidence which the government offers in place of live testimony.
(Some internal citations omitted.)
The State concedes that Green’s right to confront the witness was violated when the circuit court overruled the objection to Probation Officer Marshall’s testimony that the one time Green reported to his probation officer on October 27, 2007, he tested positive for cocaine, opiates, and marijuana. However, the State asserts that, despite the violation of the Confrontation Clause, the violation was harmless error because Green testified at the hearing that he had used drugs, failed to check in with his probation officer, failed to pay his fines and that despite his successful efforts to reform his behavior over the past year, he had never complied with the terms of his probation. We agree, and on this point we affirm.
l.qTrial error involving the Sixth Amendment right to confront adverse witnesses is subject to a harmless-error analysis. Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995). Whether a Confrontation Clause violation is harmless error depends on a variety of factors, including the importance of the witness’s testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the overall strength of the prosecution’s case. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Andrews v. State, 344 Ark. 606, 42 S.W.3d 484 (2001).
The Arkansas Supreme Court has previously dealt with harmless error concerning a violation of the Confrontation Clause in a revocation hearing. In Roston v. State, 362 Ark. 408, 208 S.W.3d 759 (2005), the circuit court refused to allow the appellant the opportunity to question crime-lab personnel after he had demanded to do so. The court held that, despite the circuit court’s violation, the error was harmless:
Roston had committed an offense punishable by incarceration, and was therefore subject to a revocation of his probation, whether or not the substances found in the two baggies were narcotics. The crime lab personnel’s testimony was not necessary to prove the prosecution’s case. In addition, the special agent testified that the search of Roston’s home yielded marijuana, alcohol, and a firearm, all of which violated the terms of his probation.
Id. at 410, 208 S.W.3d at 760-61.
In the present case, Peyton’s testimony that Green did not pay his fines as ordered, and Green’s own testimony of the myriad ways he did not comply with the terms of his probation made Marshall’s testimony unnecessary for the prosecution to prove that Green’s probation should be revoked.
Affirmed.
| Gruber and Whiteaker, JJ., agree.
. Our court previously remanded this case for the record to be settled and supplemented. Green v. State, 2014 Ark. App. 580, 2014 WL 5482979. | [
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ROBERT J. GLADWIN, Chief Judge
h Melissa Cogburn, the mother of six children adjudicated dependent-neglected, appeals the Clark County Circuit Court’s permanency-planning order, filed October 8, 2014, and amended October 27, 2014. The order sets the goal of the case as permanent custody of two children, J.C. (DOB 09/02/2004) and R.C. (DOB 08/13/2003), with their father, Jack Cog-burn. The goal of the case for the remaining four children continued to be reunification with their mother. The sole issue on appeal is whether the evidence was sufficient to support the trial court’s order. We affirm.
The Arkansas Department of. Human Services (DHS) filed a petition for emergency custody and dependency-neglect against the mother on October 30, 2013, alleging that the children were dependent-neglected as a result of Melissa Cogburn being charged with DWI, having wrecked her vehicle with three of her children in it, and Citing in an attached affidavit its long history with Ms. Cogburn involving allegations of environmental neglect, inadequate | ¡food, and inadequate supervision. The petition alleged that it was necessary to remove the children from parental care to protect their health, safety, and physical well-being. The petition also stated that Jack Cogburn was the father of the two oldest children, J.C. and R.C. The attached police report reflected that Melissa Cog-burn was charged with DWI-drugs; endangering the welfare of a minor; having no liability insurance; careless driving; and violating the child-restraint law. An ex parte order placing the children in DHS custody was granted and filed on October 30, 2013. On November 6, 2013, Jack Cogburn filed a motion for temporary custody of J.C. and R.C.
On November 8, 2013, an order was filed finding probable cause that the emergency conditions that had necessitated removal of the children from their mother continued; the children should continue in the custody of DHS; and it was contrary to their welfare to be returned to their mother. DHS was ordered to develop a case plan and Ms. Cogburn was ordered to submit to a hair-follicle test for drugs and'alcohol and to submit to a drug-and-alcohol assessment.
A consent order for temporary custody of J.C. and R.C. was filed on November 8, 2013, providing that their father was allowed temporary custody during the pen-dency of the ease. An adjudication order was filed February 10, 2014, finding that Melissa Cogburn had stipulated to the facts contained within the affidavit attached to the emergency petition. Thus, the trial court found that the children were dependent-neglected based on their mother’s drug use. The goal of the case was set forth as reunification with Ms. Cog-burn. The trial court also adjudicated Jack Cogburn as the legal father of J.C. and R.C. and [¡¡acknowledged the custody order filed November 8, 2013.
A court report was filed by DHS on March 19, 2014, wherein it was the agency’s recommendation to continue the children in foster care. On April 7, 2014, Jack Cogburn filed a motion seeking permanent custody of J.C. and R.C. Melissa Cogburn responded that she was working with DHS to remedy the reasons for the removal of her children and was in compliance with the court orders.
On April 15, 2014, a review order was filed finding that a return to Ms. Cog-burn’s custody was contrary to the children’s welfare. The trial court found that J.C. and R.C. should remain in their father’s custody and that the remaining four children should remain in DHS custody. The goal of the case continued to be reunification, and it was found that DHS had made reasonable efforts to provide services to achieve the goal of reunification. The order reflects that Ms. Cogburn substantially complied with the case plan in that she completed her psychological evaluation, attended counseling, attended outpatient drug treatment, and maintained visitation with the children. The trial court noted, however, that Ms. Cogburn was living in a duplex, owned by her relative, with James Ross, a convicted murderer, living in the other portion of the duplex. Finding this arrangement inappropriate housing, the trial court found that Ms. Cogburn’s housing was not stable.
A review order of July 17, 2014, maintained custody with DHS and Jack Cog-burn and found that the goal should continue to be reunification. The order contains findings that Ms. Cogburn had complied with the case plan in that she had completed her psychological evaluation, attended counseling, completed outpatient drug treatment, obtained housing, and |4had visitation with the children, and Jack Cogburn had complied with the case plan. However, the trial court found that it needed to “see more information from Melissa Cogburn to determine her financial ability to care for the juveniles.”
At the permanency-planning hearing, DHS and the attorney ad litem recommended that the children be returned to their mother’s custody. Jack Cogburn testified that he had custody the previous ten months, and he said that his children had improved in behavior since coming into his care. He testified that he worked Monday through Thursday on a job that required him to be out of town. Therefore, his fiancée Yolanda Whitney took care of the children while he was away. He said that he and Ms. Whitney lived in a six-bedroom house on two acres within the Glenwood city limits. He admitted to drinking a six-pack of beer on Fridays, but said this always took place at his uncle’s house, away from the children.
Ms. Whitney testified that she had custody of two children from a previous marriage, and they lived with her, along with Jack Cogburn, Pete Cogburn (Jack’s brother), and his girlfriend Courtney Clo-neger. She testified that she would be the primary care giver when their father was out of town, but the children had been getting along fine and were thriving. She said that when the children first came into their care, they both had lice and R.C. had an ear infection that took two rounds of antibiotics to cure. She said that both children loved to see their siblings.
DHS caseworker Bobbi Lee testified that she had prepared the court report and recommended that the children be returned to their mother. She said that Melissa Cogburn had support from her mother and received child support and a disability check, so she would | ¿financially be able to handle six children. She said that she had worked with Melissa Cogburn since the beginning of the case, and she had completed the case plan, done everything DHS asked of her, and that reunification was the goal of the case. Ms. Lee admitted that she never “had a question” about J.C. and R.C. being with their father during the pendency of the case. She also said that there was nothing about the children being with the father that would give her concern about their health, welfare, or safety, and the placement there was in the children’s best interest. Ms. Lee also stated that she had been aware of Jack Cog-burn’s out-of-town job when the children were placed with him. She said that Ms. Cogburn had visitation for only the last six weeks.
Melissa Cogburn testified that she felt like she could handle six children and had concerns about Jack Cogburn having custody of J.C. and R.C. She believed because of his work schedule, the children should be with her. She claimed that Mr. Cog-burn was in violation of the divorce decree, which stated that he could not live with someone of the opposite sex. She further testified that Mr. Cogburn has had a drinking problem since she had known him, and that he gets violent when he drinks. She claimed that he was very abusive and went to jail one time for it. She also said that she had not received all of her visitation with J.C. and R.C. and that, when she had custody of the children, Mr. Cogburn did not exercise his standard visitation. She said that she had been receiving his child-support payment, even though he had custody of the children, because he was so far behind.
Melissa Cogburn said that, prior to this incident, she was able to take care of the children financially even without Jack Cog-bum’s child-support payment. She said that if she |fihad a financial problem, she could call her mother or sister, who were able to help. She stated that if she gets all the children back with her, she might be able to receive $900 in food stamps. Her rent was $500 per month, but she did not know what her utilities would be because she had just moved into her house and had not received a water bill; however, she believed that she would have enough money coming in with the child support, food stamps, and disability check to pay for all of that, even if her parents decided not to help her. She said that she planned to take steps to seek child support against the fathers of the four children who were not at issue in the case.
Karrie Goodman, executive director for CASA in Clark County, said that she had been to every visitation at Melissa Cog-burn’s house with J.C. and R.C. She said that she had come to realize that the children work together as a family and that she thought it would do more harm to separate the siblings. She said R.C. flourished in being a mom to two younger girls, and that the kids love and are attached to R.C. and J.C. She testified that it was in the children’s best interest to keep all six siblings together by reunification with their mother.
In its permanency-planning order of October 8, 2014, the trial court changed the goal of the case for J.C. and R.C. to be permanent custody with their father, and left the goal of reunification with their mother for the other four children. The trial court reasoned that the children had been with their father for eleven months, that Mr. Cogburn had complied with the court’s orders, that the children were having problems when they arrived at their father’s, but their situation was improving. Further, the court found that Melissa Cog-burn had achieved stability for only a short time and only after several delays caused by her poor | judgment. The court noted that her financial situation was precarious and dependent on the maternal grandmother. Further, the court acknowledged that eleven months had passed and determined that changing custody would require a change of schools, daily routine, and possibly medical and counseling personnel, all of which could be detrimental. The trial court found that either party could file an appropriate motion for modification in their divorce action. This order was amended on October 27, 2014. Appellant filed a timely notice of appeal, and this appeal followed.
In dependency-neglect proceedings, the standard of review on appeal is de novo, although we do not reverse unless the trial court’s findings are clearly erroneous. See Ingle v. Ark. Dep’t of Human Servs., 2014 Ark. 471, 449 S.W.3d 283. 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. See id.
We give due deference to the superior position of the trial court to view and judge the credibility of the witnesses. Mosher v. Ark. Dep’t of Human Servs., 2015 Ark. App. Ill, 455 S.W.3d 367. This deference to the trial court is even greater in cases involving child custody, as a heavier burden is placed on the trial judge to utilize to the fullest extent his or her powers of perception in evaluating the witnesses, their testimony, and the best interest |sof the children. Callison v. Ark. Dep’t of Human Servs., 2014 Ark. App. 592, 446 S.W.3d 210.
Melissa Cogburn argues in this appeal that the evidence presented supported either placing custody with her or a continuation of reunification with her, that there was insufficient evidence upon which to grant permanent custody of J.C. and R.C. to Jack Cogburn, and that the trial court acted against the children’s best interest when placing permanent custody with Jack Cogburn. She contends that the decision to award custody to Jack Cogburn was contrary to the recommendations of DHS, the attorney ad litem, and CASA, and it was contrary to the law and facts.
Melissa Cogburn acknowledges that placement with a fit parent is an appropriate permanency plan under Arkansas Code Annotated section 9 — 27—338(c)(1) (Supp. 2013). She maintains that the overarching concern in any child custody case, however, is the best interests of the child, citing Arkansas Department of Health & Human Services v. Jones, 97 Ark. App. 267, 248 S.W.3d 507 (2007). She argues that DHS, CASA, and the attorney ad litem all recommended that the children begin the transition to their mother on the day of the hearing. She contends that only Jack Cogburn and the trial court thought differently.
She claims that the trial court casually dismissed the fact that she had completed her case plan, which flies in the face of allowing reunification with her. She contends that because she is disabled, she can stay home and care for the children. Conversely, Jack Cogburn works out of town and allows his fiancée to care for the children while he is away.
Melissa Cogburn also claims that — even though the trial court found that she had achieved stability for only a short time due to her leaving treatment programs and residing |ain a residence with a convicted murderer, that her economic condition is dependent on her mother, and that she has a history of unstable men outside of marriage — she did complete the case plan and achieved stability within ten months of her children being taken into care. DHS recommended that the children be returned to her. She contends that it would be a dangerous precedent to reward the parent who is healthy and able to work, while denying a fit and capable parent custody due to her unfortunate medical condition that limits her income. She claims that finding her incapable of providing financially for her children when the evidence was that she had food stamps, her mother’s help, her sister’s help, her disability income, and child support is against the weight of the evidence.
She argues that the bond between all six children is close and should not be broken. Further, she claims that it is inconsistent to find that the four younger children would transition into her home, but the older two would not because she was not stable enough.
Ms. Cogburn’s appeal to this court is a request to re-weigh the evidence in the trial court’s determination of the children’s best interest. A de novo review of the record reveals substantial evidence supporting the trial court’s findings. We give due deference to the superior position of the trial court to view and judge the credibility of witnesses, Mosher, supra, and a greater deference in cases involving child custody. Callison, supra. Given these considerations, the trial court’s ruling was not clearly erroneous.
Finally, Melissa Cogburn contends that the trial court’s reliance on hearsay evidence was error. The trial court’s opinion states as follows:
At the beginning for this case, J.C. and R.C., and essentially all of the children were being neglected and not receiving proper care and supervision. This | ^contributed to serious academic and developmental problems for the children. The April 4, 2014 report from J.C. and R.C.’s counselor confirms the serious problems they were having at the time custody was placed with the Father. The counselor also reports that the Father and Yolanda Whitney have appropriately taken the children to counseling and that the children’s situation is improving. There was similar evidence from J.C. and R.C.’s school that documented their deficits at the beginning of the case but show academic improvements since the children were placed with the Father.
Ms. Cogburn argues that the counselor did not testify at the hearing and the letter was not introduced, but was merely an exhibit to the father’s custody motion. She also complains that the counselor’s letter was written four months prior to the hearing. She contends that Arkansas Rule of Evidence 801 (2014) prevents out-of-court statements made by a non-party for the truth of the matter asserted. She claims that the trial court relied on hearsay in finding that the children were being taken to counseling and that their situation was improving. She argues that this error was not harmless, as there was no further information provided in the record to support the trial court’s finding that the children’s condition had improved. She claims that she was not allowed to object to the letter because it was never offered as evidence, either at the permanency-planning hearing or at a prior hearing.
Although we agree that the trial court erred when it relied on the counselor’s report because it was hearsay, Olivares v. Arkansas Department of Human Services, 2013 Ark. App. 94, 2013 WL 543325, we will not reverse without a showing of prejudice, as prejudice is not presumed. Lynch v. Ark. Dep’t of Human Servs., 2012 Ark. App. 149, 2012 WL 474807. Contrary to Ms. Cogburn’s argument that there was no evidence other than the counselor’s letter that the children had improved, Jack Cogburn testified that he had custody the previous ten months, and he said that his children had improved in behavior since coming into his care. Yolanda Whitney testified that the | ^children had improved in that when the children first came into their care, they both had lice and R.C. had an ear infection that took two rounds of antibiotics to cure. Because there was evidence that the children had improved while in the care of their father, any error committed by the trial court in referencing the counselor’s letter was harmless.
Affirmed.
Abramson and Harrison, JJ., agree.
. Attached to the first amended permanency-planning order is a Rule 54(b) certificate signed by the circuit court, wherein the court found that a danger of hardship or injustice could occur without an immediate appeal. Ark. R. Civ. P. 54(b)(1) (2015). Therefore, in accordance with Arkansas Supreme Court Rule 6-9(a)(l)(B) (2015), the permanency-planning order is an appealable order. See Ark. Dep’t of Human Servs. v. Denmon, 2009 Ark. 485, 346 S.W.3d 283. | [
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JOHN MAUZY PITTMAN, Judge.
| jThis is an appeal after remand of McVesting, LLC v. McGoon, 2012 Ark. App. 541, 2012 WL 4671368. In that case, we reversed the probate court’s determination that McVesting lacked standing to petition for a determination of heirship of a one-half share of the reserved mineral rights in certain real property in Van Bu-rén County. The question presented in the current appeal is whether the present appellants’ motion to intervene as of right was erroneously denied on the ground that their interest in the property was terminated as a matter of law by a deed filed in 2009. We reverse and remand.
The property at issue had been owned by Cecil R. Curren Sr., who died in Florida in 1991. Curren Sr. left a will devising his interest in the property to his grandchildren, the appellants. However, the will was not admitted to probate in Florida until 2004, and was not admitted to probate in Arkansas until 2012. In the interim, on June 24, 2009, the decedent’s son, Cecil R. Curren Jr., quitclaimed his interest in the property to McVesting, LLC, for 12nominal consideration. The validity of that deed is the crux of this case. It is alleged by appellants (as it previously was alleged by Curren Jr.) that the deed had been procured by fraud and was thus void. The fraud alleged is that McVesting knew that a will existed but nevertheless purchased the land from Curren Jr. The trial court declared that this argument was unavailing because appellants failed to assert their claims to the land within five years of the death of Curren Sr., ie., by 1996.
Arkansas Code Annotated § 28-40-103 (Repl.2012) governs time limitations on bringing a will to probate, and provides that:
(a) No will shall be admitted to probate and no administration shall be granted unless application is made to the court for admission to probate within five (5) years from the death of the decedent, subject only to the exceptions stated in this section.
(b) This section shall not affect the availability of appropriate equitable relief against a person who has fraudulently concealed or participated in the concealment of a will.
(c)(1) Insofar only as it relates to real property in Arkansas, or any interest in real property, the will of a nonresident which has been admitted to probate in another appropriate jurisdiction may be admitted to probate in this state without regard to the time limit imposed by this section.
(2) However, rights and interests in the real property which, after the death of the testator if it is assumed that he or she died intestate, have been acquired by purchase, as evidenced by one (1) or more appropriate instruments which have been properly recorded in the office of the recorder of the county in which the real property is situated and which would be valid and effective had the decedent died intestate, shall not be adversely affected by the probate of the will in this state after the expiration of the time limit imposed by subsection (a) of this section.
Under this statute, the 2012 Arkansas probate of Curren Sr.’s will is proper because that will had previously been admitted to probate in Florida. Ark.Code Ann. § 28-40-103(a) and (c)(1). Even then, however, if the real property involved were purchased after the death of lathe testator by a third party from a person who, but for the will, would have been the intestate heir of the decedent, interests in the property would not be affected by the probate of the will after the expiration of the five-year period set out in subsection (a) if the instrument of transfer had been recorded in the county where the real property is located. -Ark.Code Ann. § 28-40-103(c)(2).
Here, it is undisputed that, but for the will, Curren Jr. would have been the intestate heir of Curren Sr. It is also undisputed that Curren Jr. quitclaimed his interest in the property to McVesting by an instrument that was properly recorded on June 24, 2009. Finally, it is undisputed that the will was not admitted to probate in Arkansas until October 23, 2012.
Appellants’ argument rests on two prongs: first, that the deed was void ab initio because it was fraudulently obtained by McVesting because McVesting knew about the will; second, that they may pursue an action to have the deed declared void for fraud pursuant to subsection (b) of the statute. Appellees assert that the Arkansas Supreme Court’s decision in Cooper v. Tosco Corp., 272 Ark. 294, 613 S.W.2d 831 (1981), precludes such an action because it held that the statute did not require that a recorded sale be a bona fide purchase for value. However, the court in Cooper expressly noted that there was no allegation of fraud in that case. Here, appellants have alleged fraudulent concealment of the will, invoking section 28-40-103(b).
Pursuant to Rule 24(a)(2) of the Arkansas Rules of Civil Procedure, three requirements must be met for intervention as of right: (1) the party must claim a recognized interest in the property or transaction that is the subject of the litigation; (2) the party’s interest must be such | ¿that it might be impaired by disposition of the action; and (3) the party’s interest is not adequately represented by existing parties. We apply an abuse-of-discretion standard of review when considering the denial of a motion to intervene as a matter of right, Hunter v. Runyan, 2011 Ark. 43, 382 S.W.3d 643, and in this case, we hold that the trial court abused its discretion in denying appellants’ motion to intervene. Appellants, being the named devisees of the properly in question in Curren Sr.’s will, clearly had a recognized interest in the mineral interests in the property that McVesting’s petition sought to settle. In denying appellants’ motion to intervene, the trial court erroneously found that appellants lacked a valid interest in the litigation, and therefore the trial court failed to rule on McVesting’s alternate argument that appellants’ motion to intervene was untimely filed. We reverse the trial court’s order and remand for a ruling on the timeliness issue. In the event that the trial court finds that appellants’ motion to intervene was timely, additional proceedings shall follow with appellants’ participation in the litigation.
Reversed and remanded.
WALMSLEY and HIXSON, JJ, agree. | [
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KENNETH S. HIXSON, Judge.
| Appellant Terry Detherow appeals his convictions for manslaughter and third-degree battery, asserting reversible error on the basis that the trial judge abused his discretion on two evidentiary rulings. One ruling permitted the State to introduce evidence regarding facial injuries on his girlfriend, and the other ruling refused the defense permission to call the prosecuting attorney as a witness during trial to impeach State witnesses. Because the trial court did not abuse its discretion, coupled with appellant’s failure to demonstrate resulting prejudice even had such an abuse of discretion been shown, we affirm.
Appellant was charged with the first-degree murder of John Jacob Mosley and the first-degree battery of ■ Charles Edward Wilmoth following a shooting on the night of an annual party held in Scott, Arkansas. Appellant contended that he pulled his gun from his pocket in self defense when he felt physically threatened by party-goers, and in a struggle over the gun, [⅞⅛ discharged at least twice, resulting in the fatality and injury. A Pulaski County Circuit Court jury found him guilty of the lesser-included offenses of manslaughter and third-degree battery. The jury sentenced appellant to an aggregate of 540 months in prison, enhanced because he was a habitual offender and because the jury found that he committed manslaughter with a firearm.
Several persons in attendance at the party testified at the trial. John Arthur Mosley, uncle to the deceased John Jacob Mosley, testified that he lived in Scott, Arkansas. It was his property where the annual all-day crawfish party was held, and he estimated that about 150 people attended. He said that the children would fish and play in the Scott Bayou; there was a stage for a band; there were horses; and food was served from approximately 4:00 p.m. until dark. Some people brought campers and tents to the property. He did not see, but he did hear, shots being fired. He ran to the scene, finding his thirty-seven-year-old nephew on the ground, bleeding and with a bullet hole in his chest. He drove him to the hospital, but his nephew did not survive.
Amber Rice testified that when her friend Tammy Davis arrived at the party that day, Tammy took off her sunglasses, revealing a black eye. Amber asked Tammy what happened, and Tammy told her that her boyfriend Terry Detherow (appellant) did it. Later, Amber realized that Detherow had a pistol in his pocket, and when she asked him why he had a gun, he told her it was for his protection at his barber shop. Amber later saw Detherow holding a gun, walking out of the party.
IsCandice Sanchez testified she arrived at about 7:30-8:00 that night and that she did not know Tammy Davis or Detherow before the party. Sanchez became aware that Detherow had punched a man, who was on the ground bleeding. Detherow appeared to be angry, yelling at the man he hit. When she asked Detherow why he hit the person, Detherow responded by throwing his arms up and saying, “Come on, f* *k you, I’m from the country, b* *eh.” Sanchez said that four or five other people were within reaching distance of Detherow, telling Detherow to leave, but she did not see anyone touch him. Deth-erow then began to back away, saying, “Y’all want some?” and pulling out his gun. Sanchez testified that Detherow raised the gun and shot it into the air. She ran away to the woods but heard two more shots. Later, she saw Detherow standing at the exit gate, still holding the gun.
Lasa Robertson testified that she was a longtime friend of the Mosley family. She observed Detherow, Tammy Davis, Tony Givens, and Gary Ross under a nearby tent canopy. She heard Detherow being loud, calling Tammy foul names and telling her to get up and leave with him. Robertson saw that Tammy had a black eye and was drunk; Robertson assumed she did not want to go with Detherow when she did not get up on his command. She witnessed Gary Ross stand behind Tammy’s chair and tell Detherow, “She’s not going with you.” Detherow threatened and then punched Ross in the jaw. As she reached for Detherow’s arm and asked him to leave, she testified that he turned to her and said, “I’ll drop a b* *ch ... any b* *ch,” which she took as a threat. She saw Detherow pull a gun from his pocket and fire it into the air. She left the scene but heard two more shots fired.
LFayburn Jason Coffman testified that although he did not see the altercation between Gary Ross and Detherow, he saw Ross on the ground after being hit, and Detherow was “hollering, screaming, and pointing.” Coffman said he and another man approached Detherow and asked him to leave, not in a threatening manner and with no one touching Detherow, but Deth-erow continued to be aggressive and mouthy. Detherow pulled out a gun, threatened them to back off or he would shoot, pointed the gun in the air, and fired. Coffman said that there were a lot of children in the area, and he tried to move them back for safety. Coffman said that “Big Ed” tried to get the gun away and that he saw John Jacob trying to help push the gun away, but Detherow shot John Jacob, who fell to the ground.
Charles Edward (“Big Ed”) Wilmoth, who was also struck by one of the gunshots, testified that he worked for the Mosley family and had known them for thirty years. Wilmoth became aware that Detherow had a gun when he saw Dether-ow pull it out of his pocket. Wilmoth said that he grabbed the gun and struggled with Detherow to take it away but that it discharged up in the air. Wilmoth was shot in the face, sustaining injuries to his eyes, nose, and the skin in the middle of his face. He also sustained an injury to his finger in the struggle to keep the gun from firing. Wilmoth denied anyone threatening Detherow, and he testified that he saw Detherow pull the trigger and shoot John Jacob.
Gary Ross, who was very familiar with the Mosley family and Detherow, testified that he walked into a tent area and found Tammy Davis sitting in his chair; he began to talk to her. Ross believed that Tammy was intoxicated. Detherow eventually approached and told Tammy that they were leaving the party, but she replied that she did not want to leave. He |sheard Detherow ask her, “Do you want to be with this motherf* *ker, motherf* *ker?” Ross said that he told Detherow that she did not have to leave with him, but Detherow punched him in the face, knocking him to the ground.
Stacey Mosley testified she knew Deth-erow but not Tammy Davis. She noticed that Tammy had a black eye. She did not see the altercation nor did she see the shots fired, but she saw John Jacob on the ground. She confirmed that children were in the immediate area. She testified that after the shooting, Detherow approached her near the exit gate and calmly told her that it was Tammy’s decision, not other people’s, whether or not Tammy would be going home with him that night.
Brian Southerland, a thirteen-year-old boy, testified that he knew John Jacob Mosley, Ed Wilmoth, and Terry Detherow. Southerland was a few yards away when the incident occurred. He said that everyone wanted Detherow to leave, and he could hear a girl say that she was not going. Southerland watched Detherow take a few steps and pull out a gun. He confirmed that Wilmoth struggled over the gun and got shot in the face. Southerland said that neither Wilmoth nor John Jacob were touching the gun when Detherow shot John Jacob in the chest.
A sheriffs investigator testified that, based on cellular telephone signals, law enforcement was able to locate Detherow several hours later at a nearby Travel Lodge, where they found Detherow and Tammy Davis asleep in bed. The investigator saw that Tammy had what appeared to be an “extremely swollen” and still bloodied “busted lip” that “appeared to be recent.” He also saw that Tammy had a black eye. Both Tammy and Detherow | appeared to be intoxicated. Tammy told the investigator, “It just seems like he just probably backhanded me.” When asked if the lip injury happened after they left the party, Tammy replied that she thought so, but she had no specific recollection of it.
Detherow’s mother, Bonnie Detherow, testified that she picked up her son and Tammy Davis after he called her for a ride around 10:15 p.m. She drove them home, but later, Detherow had her take him and Tammy to a nearby hotel because he was scared. She said that Tammy fell and busted her lip as they left to go to the hotel. She admitted that she lied to law enforcement by telling them she did not know where her son was because she wanted to protect him. Detherow’s mother testified that she was the one who gave Tammy a black eye in a physical altercation they had a few days earlier when Tammy was drunk.
Tammy Davis testified that she had lived with Detherow since 2008. Tammy acknowledged having a black eye at the time of the party, but she denied Detherow causing it; she admitted that she led other people to believe that Detherow did it. Tammy said that Detherow’s mother was the one who gave her the black eye several days prior to this party. Tammy did not remember a lot of details about that night because she became progressively more drunk, presumably in a black out when the fighting and shooting took place. Tammy did not remember what happened to her lip and did not recall telling officers that Detherow had busted her lip.
Terry Detherow took the stand in his own defense. Detherow testified that he and most of his mother’s family lived in Scott, Arkansas, where he operated a barber shop. Detherow testified that he never intended to hurt or kill anyone that night; he only pulled out 17his gun “to get him [Ed Wilmoth] off of me because he was threatening me.” He said that he and Tammy were taken to the party at about 4:30 p.m., and he had only five beers over the course of the evening. He said that there were no problems until he found Tammy under the tent with a big bottle of whiskey by her side. He was frustrated about her drinking, which was a persistent problem between them; that night, she had become “sloppy drunk.” Tammy denied having consumed whiskey, he called her a damn liar, and he told her “let’s go.” Detherow said that he was about to help Tammy get up when Gary Ross told him not to talk to her that way and to leave Tammy alone. Detherow told Ross to mind his own business, that he and Tammy lived together, and that his mother was on her way to pick them up to take them home. Detherow testified that Ross threatened to “kick my ass,” took a few steps toward Detherow and got “in my face,” so he reflexively swung at Ross and knocked him to the ground.
Detherow testified that, at that point, three or four people were yelling and coming at him, and he heard a threat that they would “have to beat that son-of-a-b* *ch’s brains out.” He denied threatening Lasa Robertson. According to Detherow, he was backing up and reaching into his pocket, pulling the hammer back on his gun, his intent being only to fire up into the air to get them to back off. Wilmoth, however, grabbed and pulled on Detherow’s hand and gun. He explained, “I shot because they were coming after me.” After it was over, Detherow said he walked to the gate to wait for his mother, his gun still in his hand. He said that after he arrived at the hotel, he called his mother and talked to detectives, agreeing that |Rin the morning he would turn himself in. Detherow confirmed his mother’s account of how Tammy sustained a black eye and hurt her own lip; he denied hitting Tammy.
The jury entered guilty verdicts on the lesser-included offenses of manslaughter and third-degree battery. Following sentencing, appellant filed a timely notice of appeal from the judgment of conviction.
On appeal, appellant contends that the trial court erroneously (1) denied a pretrial motion in limine and permitted the State to present testimony that Tammy had a black eye and busted lip, which appellant claims was irrelevant, unduly prejudicial, and improper under Ark. R. Evid. 404(b); and (2) denied the defendant’s request to have the prosecutor sworn in as a witness to discredit the testimony of several State’s witnesses, to the extent that some details they swore were given to the State were not. The standard of review for an evidentiary ruling is whether the trial court abused its discretion. Boyle v. State, 868 Ark. 366, 214 S.W.3d 250 (2005). We hold that the trial court did not abuse its discretion.
First, defense counsel filed a pretrial motion in limine to prevent the State from introducing any “mention or reference to Tammy Davis’ busted lip and/or black eyes,” citing to Ark. R. Evid. 402, 403, and 404. Appellant argued that this evidence had no relevance to the murder and battery charges for which he was being tried, especially where Detherow did not cause those injuries, it was overly prejudicial, it would confuse the issues, and it would be inappropriate “bad acts” evidence under Ark. R. Evid. 404(b). Appellant contended that this would be presented to the jury only for the purpose of establishing him to be a violent abusive man and thus inadmissible character evidence. The prosecutor responded that what |flTammy told witnesses and how she looked were part and parcel of the circumstances surrounding the crimes, and as res gestae, the jury was entitled to know the circumstances that led to the shooting, why the people at the party behaved as they did, and what was observed. The trial court agreed, denying the motion in limine but limiting the State’s inquiry to what people saw and heard.
A trial court’s decision to admit or exclude evidence is reviewed under an abuse-of-discretion standard. Jones v. State, 2011 Ark.App. 324, 384 S.W.3d 22. Arkansas Rule of Evidence 404(b) prohibits the introduction of evidence of “other crimes, wrongs, or acts” to prove the char acter of a person in order to show that he acted in conformity with that in committing the crime or crimes charged. Such evidence, however, may be admissible for other purposes enumerated in Rule 404(b). Evidence is admissible under the res ges-tae exception to establish facts and circumstances surrounding the commission of an offense. Payton v. State, 2009 Ark. App. 690, 2009 WL 3884354; Ellis v. State, 101 Ark.App. 20, 270 S.W.3d 377 (2007). This rule establishes that the State may introduce evidence showing all of the circumstances connected with and contemporaneous to a particular crime to put the jury in possession of the entire transaction. Thessing v. State, 365 Ark. 384, 230 S.W.3d 526 (2006); Bledsoe v. State, 344 Ark. 86, 39 S.W.3d 760 (2001). Res gestae testimony and evidence is presumptively admissible. Dixon v. State, 2011 Ark. 450, 385 S.W.3d 164.
Here, several witnesses described that they saw Tammy’s black eye, Tammy admitted that she led people to believe that Terry Detherow had inflicted it, and appellant, his mother, and Tammy were permitted to testify that Detherow did not cause it. The arresting officer]^testified that when he found Tammy and Detherow at the hotel hours later, Tammy had a black eye and what appeared to be a freshly busted lip. Although Detherow, his mother, and Tammy explained at trial that Tammy caused her own lip injury, it was entirely permissible for the officer to explain what he observed and that Tammy believed, albeit uncertain given her intoxication, that Detherow hit her. This evidence was not admitted for the purpose of proving that Detherow, in fact, inflicted those injuries to Tammy’s face. The visible injuries were simply evidence of the circumstances that existed that night. The trial court did not abuse its discretion by denying the motion in limine.
Second, appellant argues that the trial court abused its discretion by not allowing the defense to put the prosecutor on the stand. The defense sought to have the prosecutor testify that some of the State’s witnesses did not convey certain details of their trial testimonies to the State prior to trial, in contrast to the witnesses swearing that they did, because certain details were different or missing from the prosecutor’s written witness summaries. Appellant wanted to attack the witnesses’ credibility on that point— whether they had, in fact, informed the State of those particular details not revealed in the prosecutor’s written summaries. Defense counsel did not, and does not, allege that the State committed any discovery violation.
We hold that the evidence of which appellant complains (details from three State witnesses) is insignificant and cumulative. Fayburn Coffman and Stacey Mosley testified at trial that there were children in the vicinity during the shooting. The summaries of the interviews of these two witnesses did not contain any information regarding children being in the vicinity of the shooting or concerns about their safety. Candice Sanchez testified at Intrial that, during her conversation with appellant, he was “standing.” In the prosecutor’s summary, it stated that appellant was “sitting.”
In discussing these issues with the trial judge, the prosecutor stated that she provided brief summaries in a good-faith attempt to provide adequate and fair disclosures of her recollections, and that “I don’t know that I can stipulate to every single thing [the witness] told me.” The prosecutor urged defense counsel to cross-examine the witnesses on the perceived inconsistencies. The trial judge denied the request to have the prosecutor testify.
Appellant concedes that there is no case law directly on point. Undoubtedly, credibility of witnesses is always an issue, is always relevant, and is subject to attack by any party. VanOven v. State, 2011 Ark. App. 46, 880 S.W.3d 507. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny it, the opposing party is afforded an opportunity to explain or deny it, and the opposing party is afforded an opportunity to interrogate the witness on that issue. Ark. R. Evid. 613(b). A statement is inconsistent when a reasonable person could infer' on comparing the whole effect of the two statements that they have been produced by inconsistent beliefs. Kennedy v. State, 344 Ark. 433, 42 S.W.3d 407 (2001). We hold that the trial court did not abuse its discretion in denying the defense’s request to call the prosecutor to testify.
Regarding the trial testimony about the presence of children, we affirm the trial court’s decision because their testimonies were not inconsistent with the witness summaries. Instead, that detail is missing from the brief summaries, not contradictory with them. Moreover, the 112prosecutor represented to the trial court that she would be unable to verify every single detail that the witnesses conveyed to her. Thus, the prosecutor’s testimony would not provide a means to attack witness credibility on this particular point.
As for the other testimony about whether appellant was “standing” versus “sitting,” as recited in the summary, the trial court permitted defense counsel to ask the witness to explain. In response to a de-íense question to clarify, Sanchez said, “he was standing, she was squatting, I mean, they [Terry Detherow and Tammy Davis] were just around where we were sitting.” Defense counsel did not confront Sanchez with any perceived inconsistency or accusation of fabrication. The witness summary provided in discovery is not materially different when considered in light of Sanchez’s explanation. Having the prosecutor testify would not achieve the goal of impeaching this witness’s credibility either. The trial court did not abuse its discretion in refusing to permit defense counsel to call the prosecutor as a witness.
Appellant has not demonstrated reversible error, and thus we affirm appellant’s convictions.
Affirmed.
PITTMAN and WALMSLEY, JJ., agree.
. We point out that appellant abandoned his alternative argument made to the trial court that a State's stipulation should have been ordered, acknowledging that no trial court error would exist in refusing to order such a stipulation. Appellant also abandoned his alternative argument that a mistrial should have been declared. Our focus is, therefore, on the denial of the defense request to call the prosecutor as a witness to impeach the State witnesses’ credibility. | [
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PER CURIAM.
Iffn 2011, appellant Billy Wayne Stewart was found guilty by a jury of the rape of J.H., in violation of Arkansas Code Annotated section 5-14-103(a)(2)(B) (Repl. 2005), which provides that a person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person who is incapable of consent because he or she is mentally defective. At the time of the rape, J.H. was twenty-three years of age but functioned on a first-or second-grade level and was under the guardianship of another person. Appellant, who was a friend of the family, stayed with J.H. and her parents for a short time and engaged in sex with J.H. on at least one occasion, which resulted in pregnancy. A paternity test established that appellant was the father of the child. Appellant was sentenced to 840 months’ imprisonment. We affirmed. Stewart v. State, 2012 Ark. 349, 423 S.W.3d 69.
Subsequently, appellant timely filed in the trial court a verified, pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011). The trial |2court denied the petition after holding a hearing. Appellant brings this appeal.
In his petition, appellant alleged that he was not afforded effective assistance of counsel at trial. This court has held that it will reverse the trial court’s decision granting or denying postconviction relief only when that decision is clearly erroneous. Conley v. State, 2014 Ark. 172, 433 S.W.3d 234. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Caery v. State, 2014 Ark. 247, 2014 WL 2158140 (per curiam); Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694.
When considering an appeal from a trial court’s denial of a Rule 37.1 petition based on ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel’s performance was not ineffective. Taylor v. State, 2013 Ark. 146, 427 S.W.3d 29.
The benchmark for judging a claim of ineffective assistance of counsel must be “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052. Pursuant to Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance must show that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Caery, 2014 Ark. 247; Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). There is a strong presumption that trial counsel’s conduct falls within the |swide range of professional assistance, and an appellant has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable professional judgment. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55; McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per curiam). Second, the petitioner must show that counsel’s deficient performance so prejudiced petitioner’s defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462. A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel’s performance fell below an objective standard of reasonableness. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). The petitioner must show that there is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Breeden v. State, 2014 Ark. 159, 432 S.W.3d 618 (per curiam). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The language, “the outcome of the trial,” refers not only to the finding of guilt or innocence, but also to possible prejudice in sentencing. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. “[Tjhere is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.
We first note that appellant in his brief has expanded the allegations raised in the Rule 87.1 petition and discussed at the evidentiary hearing. On appeal, an appellant is limited to the L scope and nature of the arguments he or she made below that were considered by the trial court in rendering its ruling. Thornton v. State, 2014 Ark. 113, 2014 WL 1096263 (per curiam). We will not consider new arguments raised for the first time on appeal or consider factual substantiation added to bolster the allegations made below. Id.; see also Bryant v. State, 2013 Ark. 305, 429 S.W.3d 193 (per curiam); Hogan v. State, 2013 Ark. 223, 2013 WL 2295431 (per curiam). Likewise, issues raised below but not argued on appeal are considered abandoned. Springs v. State, 2012 Ark. 87, 387 S.W.3d 143.
Appellant admitted at trial that he had engaged in sexual intercourse with J.H. As stated, J.H. became pregnant, and it was proved by scientific testing that appellant was the child’s father. In her testimony, J.H. said on cross-examination by the defense that Amy Stewart, appellant’s wife, was in the room when J.H. and appellant were having intercourse. Appellant contended in his Rule 37.1 petition that his attorney should have called Amy Stewart to testify that she was not present. Appellant alleged that, had counsel called Amy, she would have testified that she was not present, thus demonstrating to the jury that J.H. was capable of lying and rebutting the testimony of a State witness that J.H. could not lie. Appellant also contended that Amy would have been an important “eye witness” who could have testified that J.H. had talked of having multiple sexual encounters, which would have suggested to the jury that J.H. understood what she was doing when she engaged in intercourse with appellant. He argued that Amy’s testimony would have established that he could not have been guilty of having engaged in sexual conduct with a mentally defective person who was incapable of giving consent because J.H. had been knowledgeable about sex and initiated intercourse with him. At the Rule 37.1 hearing, counsel testified that he did not believe that Amy’s testimony would have benefited the defense.
IsThe trial court declined to grant post-conviction relief on the claim, and we find no error. The gravamen of the charge against appellant was that he had engaged in sexual relations with J.H. who was incapable of consent by virtue of her mental age of six or seven years. Appellant did not argue that he had not engaged in intercourse with J.H. and that fact was proven by appellant’s having fathered J.H.’s child. Under the circumstances, it cannot be said that the outcome of the trial would have been different had the jury known that J.H. had been incorrect in her testimony ' about Amy’s presence. With respect to Amy’s ability to shed light on J.H.’s prior sexual experience, even if such testimony had been admissible, appellant did not show that Amy’s testimony would have demonstrated that J.H.’s intellectual functioning was such that she was capable of consent.
In a related claim, appellant argues that counsel should have filed a formal motion to permit evidence of J.H.’s prior sexual conduct to be admitted into evidence at trial. He notes that, when he argued on direct appeal that the trial court erred in not allowing such testimony, this court held that the issue was not preserved for appeal. He contends that counsel’s failure to file the motion challenging the Arkansas rape-shield statute, codified at Arkansas Code Annotated section 16-42- 101 (Repl.1999), resulted in his being unable to confront witnesses.
When it is asserted that counsel was ineffective for the failure to make a motion or argument, the petitioner must show that the motion or argument would have been meritorious because the failure to make an argument that is meritless is not ineffective assistance of counsel. Conley, 2014 Ark. 172, 433 S.W.3d 234 (citing Mitchell v. State, 2012 Ark. 242). For that reason, appellant must demonstrate that a motion challenging application of the rape-shield statute to |fihis case would have had merit. See Conley, 2014 Ark. 172, 433 S.W.3d 234 (citing Strain v. State, 2012 Ark. 42, 394 S.W.3d 294). Counsel at trial made numerous attempts to elicit testimony that concerned J.H.’s prior sexual conduct, which were rebuffed by the trial court, and appellant has not shown that a formal objection to application of the rape-shield statute to his case would have been successful.
Moreover, at the evidentiary hearing, counsel testified that he did not file such a motion as a matter of trial strategy. He explained that he did not believe that it would have been helpful to the defense in light of the fact that appellant was charged with having engaged in sex with a mentally deficient person,, and evidence of J.H.’s prior sexual conduct would have caused the jury to see her as a sympathetic figure who had been preyed upon by others. It was preferable, therefore, to focus on appellant’s reasons for believing that she was capable of consent. Counsel further said that he feared that focusing on J.H.’s prior conduct rather than her conduct with appellant would have risked alienating or angering the jury and would have resulted in a longer sentence of imprisonment if appellant were found guilty.
Counsel is allowed great leeway in making strategic and tactical decisions. Ellis v. State, 2014 Ark. 24, 2014 WL 260991 (per curiam) (citing Leak v. State, 2011 Ark. 353, 2011 WL 4092217 (per curiam)). We have repeatedly held that matters of trial strategy, even if the strategy proves improvident, are not grounds for granting postconviction relief. Hayes v. State, 2014 Ark. 104, 431 S.W.3d 882; Prater v. State, 2012 Ark. 164, 402 S.W.3d 68; Fretwell v. State, 292 Ark. 96, 728 S.W.2d 180 (1987) (per curiam). Nevertheless, the decisions must be based on reasonable professional judgment. Ellis, 2014 Ark. 24; Clarks v. State, 2011 Ark. 296, 2011 WL 3136042 (per curiam); Leak, 2011 Ark. 353. Here, as the crux of the |7charge against appellant was the ability of the victim to give consent, appellant did not establish that counsel’s decision not file a motion challenging the rape-shield statute was not an exercise of reasonable professional judgment.
Appellant also argues that counsel was remiss in not calling an expert witnesses to rebut testimony by the State’s witnesses that J.H. functioned on a six-or seven-year-old level and to show that she was not taking “mental medication.” He did not, however, state in his petition or at the evidentiary hearing what expert would have been available to contradict the testimony or on what information an expert could have contradicted the testimony that J.H. was of low intelligence. While he alleges that doctors should have been called to testify for the defense, that a mental evaluation of J.H. should have been conducted, and that a more in-depth investigation should have been carried out by counsel to show that J.H. was capable of giving consent, he fails to demonstrate that' more investigation would have uncovered specific facts that would have benefited the defense or that there was good cause for the defense to move for a mental evaluation of J.H., which might have resulted in further proof of the low level of J.H.’s intellectual functioning. Again, appellant failed to offer facts to show actual prejudice to the defense.
To warrant postconviction relief on the ground that counsel was ineffective for failure to perform adequate investigation, a petitioner must delineate the actual prejudice that arose from the failure to investigate and demonstrate a reasonable probability that the specific materials that would have been uncovered with further investigation could have changed the trial outcome. Green v. State, 2014 Ark. 284, 2014 WL 2814866 (per curiam); Bryant, 2013 Ark. 305, 429 S.W.3d 193. | RThis court has held that general assertions, unsupported with facts, that counsel did not meet with the defendant often enough, or did not prepare for trial aggressively enough, do not provide a basis for a finding of ineffective assistance of counsel. Polivka v. State, 2010 Ark. 152, 362 S.W.3d 918 (citing Furr v. State, 297 Ark. 233, 761 S.W.2d 160 (1988)). The burden is' entirely on the claimant to provide facts that affirmatively support his or her claims of prejudice; neither conclusory statements nor allegations without factual substantiation are sufficient to overcome the presumption that counsel was effective, and such statements and allegations will not warrant granting a Rule 37.1 petition. Green, 2014 Ark. 284; Dixon v. State, 2014 Ark. 97, 2014 WL 805350 (per curiam) (citing Abernathy, 2012 Ark. 59, 386 S.W.3d 477). Appellant has failed to provide facts sufficient to show that he was prejudiced by counsel’s failure to properly investigate the case before trial or failure to call doctors as witnesses for the defense.
Appellant was allowed at the evidentiary hearing to raise the issue of whether he was prejudiced by counsel’s failure to make him aware of a plea bargain offered by the State whereby he would be allowed to plead guilty and be sentenced to ten years’ imprisonment. While this issue was not raised in the Rule 37.1 petition, it was raised at the hearing, and the trial court ruled on the issue. As the question was raised at the hearing and ruled on by the court, it is clear that the court constructively allowed appellant to amend his petition to bring up the issue. Accordingly, the issue can be raised in this appeal. See Chunestudy v. State, 2014 Ark. 345, 438 S.W.3d 923 (per curiam); see also Croft v. State, 2010 Ark. 83, 2010 WL 569744 (per curiam).
As evidence that counsel failed to communicate the plea offer to him, appellant produced a document that he contended contained the offer. Counsel testified that he had never seen the |9document, that the only plea offer that was made by the State was an offer for appellant to plead guilty and accept a forty-year prison sentence, and that the document was an obvious forgery. The deputy prosecutor whose name appeared on the document testified that no such offer was made, that the document was not in the form routinely used by her office, that she had not signed the document, and that it appeared to have been a forgery utilizing her signature taken from some other document. The trial court held that the witnesses for the State were more credible than appellant and denied relief. It was for the trial court as fact-finder to assess the credibility of the witnesses at the hearing and determine whom to believe. Barber v. State, 2014 Ark. 179, 2014 WL 1515866 (per curiam) (citing Tornavacca v. State, 2012 Ark. 224, 408 S.W.3d 727). Accordingly, appellant has not shown that the trial court’s decision on the issue was reversible error.
Appellant next contends that counsel should have objected to the State’s having allowed J.H. to visit the courtroom prior to trial. He alleges that the visits amounted to coercion by the State for J.H. to testify in a particular way and indicates that she was coached on what to say at trial. Because he offered no substantiation for the allegation that J.H. was coerced or coached to give certain testimony, appellant did not show that counsel was ineffective under the Strickland standard for not challenging J.H.’s testimony. His claims were not supported by facts sufficient to overcome the presumption that counsel’s conduct was within the wide range of reasonable, acceptable professional assistance. As appellant did not meet his burden of demonstrating that counsel made a specific error that prejudiced the defense, the trial court did not err in declining to grant relief under Rule 37.1 on the allegation. When there is no factual support for an allegation that demonstrates a specific failure on the part of counsel, there is no showing of | ^ineffective assistance of counsel under the Strickland standard. Caery, 2014 Ark. 247 (citing Mathis v. State, 2014 Ark. 148, 2014 WL 1844427 (per curiam) (holding that conclusory allegations are insufficient to overcome the presumption that counsel is effective under Strickland)).
Finally, intertwined with his arguments pertaining to claims of ineffective assistance of counsel, appellant has included assertions in his brief that the evidence was insufficient to sustain the judgment and that there were multiple instances of trial error. Such claims are not cognizable in a Rule 37.1 proceeding. Armstrong v. State, 2014 Ark. 127, 2014 WL 1096302 (per curiam). Claims of mere trial error that could have been addressed at trial, and on the record on direct appeal, are not grounds for relief under Rule 37.1. Id.; Malone v. State, 294 Ark. 127, 741 S.W.2d 246 (1987) (per curiam). Rule 37.1 is also not a means to challenge the admissibility or the sufficiency of evidence. Armstrong, 2014 Ark. 127; see also Jackson v. State, 2013 Ark. 19, 2013 WL 298081 (per curiam); Watson v. State, 2012 Ark. 27, 2012 WL 234634 (per curiam) (assertions of trial error, even those of constitutional dimension, must be raised at trial and on appeal); Robertson v. State, 2010 Ark. 300, 367 S.W.3d 538 (per curiam) (allegations of trial error that could have been raised at trial or on appeal may not be raised in Rule 37.1 proceedings).
Affirmed. | [
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ROBERT J. GLADWIN, Chief Judge.
hKhalin Collins was convicted in the Columbia County Circuit Court of three counts of arson and one count each of commercial burglary and theft of property over $2500. On appeal, Collins challenges the sufficiency of evidence corroborating the accomplice testimony as to all charges. We affirm on all counts except the conviction related to the Summit Bank arson, which we reverse.
I. Facts
Collins was charged by criminal information with committing arson as an accomplice on July 20, 2009, at Summit Bank, and committing two counts of arson as an accomplice at Walgreens and People’s Bank, commercial burglary, and theft of property over $2500 at [¿Prince's Pharmacy on July 30, 2009. At trial, officer John Ferguson testified that he was called to Walgreens on July 30, 2009, where a fire had been deliberately set. A burglary had also been reported at Steve’s Marine, where the front-door glass had been broken by a piece of concrete found lying inside the door. Officer Jeremy Criss also responded to the fire that night and saw fire on the glass of the drive-through pharmacy at Walgreens. The fire was contained to the outside of the store. He found glass on the ground that did not match the store’s glass and observed a cloth and the smell of gasoline.
Laci Collier testified that she was a friend of Collins’s and had been to his house. She said that she had seen Keon Henry, Booney, Deezy, and Gary Ellis at Collins’s house during the summer and fall of 2009. She said that sometime between May and September 2004 she, Collins, and Deezy drove to Florida in her car to move Collins’s belongings.
Lindsey Cook testified that she was Ellis’s girlfriend and knew Collins, Booney, and Henry, but did not know Deezy well. She said that at one time Ellis lived with Collins. She stated that on July 30, 2009, she stayed the night at Collins’s place and that Collins’s girlfriend stayed too. She said that Ellis borrowed her car that night. She further said that, prior to that night, she overheard Collins, Henry, and others talk about breaking into a pharmacy. She was not awake when they left the house, and when she woke up the next morning, there were some guys asleep on the couch and there were black trash bags all over the floor. Some of the bags had “stuff’ in them, but she did not know what. On cross-examination, she |3admitted that she did not know if Ellis borrowed her car that night because she was asleep. On redirect, she said that Ellis had a deep cut on his arm on the same day that she read in the newspaper “about what happened in town.”
Officer Todd Dew explained that Derek Walters contacted him with information regarding Collins, so he drove to Florida to interview Walters and his common-law wife, Stephanie Thompson. Walters testified at trial that he met Collins a few years ago and their, relationship was that “we would do small personal business, favors.” Through Collins, Walters met Booney. Walters claimed that Collins accused Boo-ney of stealing pills from him, so Walters beat Booney up. Walters said that he and Collins got “crossways” over Collins’s truck. Collins had parked his Yukon in front of Walters’s house, and Walters asked for payment in exchange for allowing the truck to remain, and Collins eventually offered him steroids for payment. When Collins later went to jail, Walters got rid of the truck and was arrested and charged for doing so. Walters said that the case regarding the truck was still pending.
Walters testified that he told Officer Dew that Collins told him that the pharmacy was the thing where they was planning it, all the guys involved got scared of it and he was the key of the show and he went in and did what he had to do. That’s why he don’t want to spread the stuff equal amongst people. One of the first things he told me was he was saying that the case took place, explained they had a lot of decoy work or some stuff. Then Booney messed around and messed up some stuff and he had to get onto him ... he did explain about the pharmacy’s been broken into all this and how he wanted to kick Boo-ney’s butt because he messed up with the thing, threw the gas bottle into the place and all that. He was ticked off about stuff going bad and he needed somebody to come in and help him with what was going on.
| ¿Walters admitted that he was a convicted felon, having served four months on a probation violation for possession of cocaine in 2000, as well as seven months’ incarceration from March 2011 until January 2012. He also stated as follows:
I talked to Khalin [Collins], that dude Gary [Ellis] was a witness, was a problem, and he wanted me to take care of it before his court date in April. Booney was there for that conversation. The first time I was going to get $10,000.... I was offered twenty grand the second time.
Stephanie Thompson testified that she heard Collins talking about robbing a pharmacy and getting pills into Florida. She thought they were just talking, but changed her mind when she heard Collins ask Walters if he would kill Gary Ellis for $10,000.
Deezy testified that he was arrested in this matter, admitting that he set fires in 2009. He claimed that he was with Collins, Ellis, and Booney, and as part of the plan, he went to Walgreens and set a fire. He testified that they went in two vehicles and that he was the lookout man. He said that Collins and Ellis dropped him off at Walgreens, and Collins gave him the brick and bottle of gasoline that he threw through the window. Deezy explained that after he threw the brick and the bottle, he ran through the woods and met with his friends at the tire place. They went back and met at Eastside Park, then went to the pharmacy. He said that Henry threw a brick through Steve’s Marine to throw the police off. He said that he was the lookout at the stop sign and did not go into the pharmacy. He did clean up the blood where Ellis had gotten hurt at the front door of the pharmacy. He said the others went into the pharmacy and came out with pills in black bags, and they all went back home. He said that Collins split “it” at his house, and for his part, Deezy got some pills, which he either sold or gave away. He said that he went to Florida with Laci Collier and |r,Collins about two weeks after setting fire to Wal-greens. He stayed in Florida almost two years. He also said that he had met Derek Walters while in Florida and saw Walters “jump” Booney at Collins’s house because Booney had stolen pills from Collins. He denied any involvement in the Summit Bank arson on July 20, 2009.
Samantha Bisswanger testified that she met Collins in 2009 and spent some time at his trailer then. She said Collins borrowed her car sometimes, and many times the guys would all leave the trailer and would take her car. She said Collins admitted to doing illegal things in her vehicle and that he was a thief. She said Collins told her that his goal in life was to rob a bank.
Detective Sergeant Michael ' Caldwell testified that he was the chief investigating officer in the Walgreens, Steve’s Marine, and Prince’s Pharmacy cases. He testified that he found blood in front of Prince’s Pharmacy, which later was determined to belong to Ellis. Based on that match, police obtained a warrant and arrested Ellis, interviewing him at length. From Ellis, the others involved were identified as Collins, Henry, Deezy, and Booney. Ellis told police that Walgreens, Steve’s Marine, and People’s Bank were all used as a diversion for the burglary at Prince’s Pharmacy. Caldwell described items used to commit the arsons as well as the burglary and theft, including a hammer and a tire iron found inside Prince’s Pharmacy. Ellis admitted to police that he used the hammer on the pharmacy door and identified the tire iron as the one used by Collins during the break-in.
Caldwell testified that, while investigating the July 30, 2009 crimes, he found similarities with a fire that had occurred ten days prior at Summit Bank. The window had | fibeen broken with a brick on the north side of the building and there was a bottle located inside that was believed to contain gasoline. No identifiable fingerprints were taken from the evidence recovered.
Booney testified that he was supposed to have set the fire at Summit Bank for a diversion, as well as the fire at People’s Bank. He said that Collins came to him with the proposition of breaking into the pharmacy. He said that he got the bottle he used for the fire from Collins’s house. He explained that the bottle bounced back on him when he threw it at the bank and that he caught fire. However, after the fire had been set at Summit Bank, Collins made the decision not to go “do” the pharmacy. He said he also started the fire at People’s Bank, which actually did catch fire, and that Collins drove him both times. Collins provided walkie-talkies for the July 30 crimes, and instructed Booney on the plan.
Gary Ellis testified that he was friends with Collins, Henry, Booney and Deezy. He admitted that he was charged with burglary and theft, but was not charged in the arsons. He also admitted that he was on probation for aggravated assault. Ellis said that Lindsey Cook was his girlfriend and that they were living together in 2009. He admitted to going to Prince’s Pharmacy, throwing a hammer through the door, and cutting his arm on the glass. He said that he went back to the car and did not go into the pharmacy. He denied having anything to do with the fires at Summit Bank, People’s Bank, or Walgreens, and denied throwing anything through the window at Steve’s Marine.
Ellis explained that they planned the crimes to cause a diversion for the robbery of Prince’s Pharmacy. He said that he did not know what happened at Summit Bank, but 17remembered dropping Booney off. He was in the car with Collins, Booney, and Deezy. He said Collins drove that night and that he had prepared the bottles. The plan was for Booney to throw the bottle through the window and set it on fire, then they would go to Prince’s Pharmacy. However, they did not follow through with the pharmacy that night.
Ellis said that he was involved in the planning of the robbery, and he and Collins went down to Dr. Beene’s office and saw that there was a trail, walked the trail, and came back. On the night of July 30, 2009, he, Collins, Booney, Deezy, and Henry talked about what was going on and how they were going to do it. He drove Lindsey’s car and Collins drove Sam’s car. They left the girls asleep at the trailer. They first went to Eastside Park, then went to People’s Bank and dropped Boo- ney off near the carwash. They then dropped Deezy off at Walgreens and drove back to pick up Booney. He said something had gone wrong at People’s Bank because when Booney tried to throw the bottle through the window, it ricocheted back on him, splashed him, and burned his clothes. He said that Collins “dogged” him for not being able to get the bottle through the window. He also said that the fire did not really “work” at Walgreens either because the fire was “amongst” the glass.
Ellis said the group then went to Steve’s Marine, and Henry got out of the car with a brick and, Ellis assumed, threw the brick. They met Henry on the next road up and went back to Eastside Park to get the other car. They drove to Dr. Beene’s office after having dropped off Deezy and Booney as lookouts with walkie-talkies. He, Collins, and Henry took the trail behind the doctor’s office that led to Prince’s Pharmacy, and Ellis stepped up |sto break the window, but the glass did not fully break. Glass then came down on his arm, and he went back to the car. He had bled a lot at the scene and did not want to leave his blood there; so, after everyone got the phis, they “went to this place over close by, we dropped all the pills off, and while we were over there we got some bottles out of the car” and filled them with water, went back to the pharmacy and poured it over the blood at the scene. He explained that he used the hammer when he had broken the window at the pharmacy, and someone else used the tire iron. When they got back to Collins’s house, it was daylight and no one was up yet. He bandaged his arm and went to sleep. He remembered looking through the bags at some point and seeing “hydros” and Xa-nax. A month or two later, Collins went to Florida. He also remembered that Henry was not satisfied with his portion of the pills, and at one point, police came to the house to talk to Collins and Henry. He said that after Collins moved to Florida, he heard Collins had put a hit out on him, and he does not consider Collins a friend.
Officer Koby Schmittou testified that he investigated the break-in at Steve’s Marine and also dealt with Collins and Henry in September 2009. He explained that Collins reported that Henry had stolen his property and threatened to kill Collins and his family because of a dispute over money.
Keon Henry testified that he had been in trouble in the past and was on probation for a firearm violation. He said that he had been charged with the incidents at Walgreens, People’s Bank, and Prince’s Pharmacy. He denied involvement with the Summit Bank fire, but admitted being involved with the others and Steve’s Marine. He said that Collins had |9been calling him for a year to talk about robbing a pharmacy, and one night he went to Collins’s house, and they formulated a plan. He reiterated Ellis’s testimony regarding Deezy’s and Booney’s roles, and stated that Ellis got cut at the pharmacy and did not go in. He said that it was his idea to throw a rock at the front glass of Steve’s Marine. He said that Ellis cut his arm on the glass at Prince’s Pharmacy, so he and Collins went into the pharmacy. Collins used a tire tool to get through the second door at the pharmacy, and when they got in, Collins gave him a trash bag and pointed out the pills for him to collect. He said they took the bags to a drop-off point so the drugs would not be in the vehicle, and they went to clean up the blood in front of the pharmacy. When they returned to Collins’s house, Henry did not stay, but went back after work that evening and collected his pills. Henry said he thought he was not given his fair portion of pills.
Jonathan Brooks testified that he remembered going to Collins’s house on August 16, 2009, because he got a traffic ticket on the way. He obtained Xanax pills from Collins that day. In the months prior, he had seen Henry, Ellis, Booney, and Deezy there. He had also seen Sam-mi Bisswanger and Lindsey Cook there.
James Waller testified that he worked for People’s Bank. He said that the July 80, 2009 arson caused $3500 in damage. Caleb Hawkins testified that he is the Walgreens manager and that he was notified when the alarm sounded. The total damage to the facility was $8224.27. Jeff Prince testified that he owns Prince Pharmacy, and the damage to his business cost $450-$470, and the value of the pills stolen was about $12,000.
| mGreg Pinner, fire chief for the Magnolia Fire Department, testified that the fire at Summit Bank was caused by someone having thrown a brick and then a bottle with gasoline through the window. The damage total was $177,608. He also investigated the Walgreens fire and opined that arson was the cause. Finally, he said that the fire at People’s Bank was also caused by a bottle being thrown at the window, although it did not go through.
The trial court denied Collins’s motion for directed verdict, wherein he argued that there was insufficient corroboration of accomplice testimony related to each count.
Reba Collins testified that she is Collins’s grandmother and that Henry told her that he had committed the crimes and that her grandson did not. Officer Caldwell testified and admitted losing the handwritten “grocery” list found at Prince Pharmacy, but that no handwriting analysis had been done on it. He said that in Ellis’s first police interview, he did not say that Collins was there at all, and Ellis later said that Collins was involved. Officer Caldwell testified that there was no forensic or trace evidence tying Collins to any of these crimes. Finally, Bobby Collins testified that Khalin Collins was his nephew and that, when Ellis was “put out” of the trailer, Khalin Collins began living in it, and Ellis was not happy about that.
Collins moved for directed verdict, again arguing that there was insufficient corroboration on all counts, especially the July 20, 2009 arson. The trial court denied that motion, and Collins was convicted on all counts and sentenced to ninety years’ imprisonment. This appeal timely followed.
1 nil. Applicable Law
On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Smoak v. State, 2011 Ark. 529, 385 S.W.3d 257. In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Anderson v. State, 2011 Ark. 461, 385 S.W.3d 214. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Camp v. State, 2011 Ark. 155, 381 S.W.3d 11. On appeal, we review the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Williams v. State, 2011 Ark. 432, 385 S.W.3d 157.
When accomplice testimony is considered in reaching a verdict, Arkansas law provides that a person cannot be convicted based on 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.2005). Corroboration must be evidence of a substantive nature, since it must be directed toward proving the connection of the accused with the crime, and not directed toward corroborating the accomplice's testimony. Camp v. State, supra. Corroborating evidence need not, however, be so substantial in and of itself to sustain a conviction. Id. Rather, it need only, independently of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the crime. MacKool v. State, 365 Ark. 416, 231 S.W.3d 676 (2006). The test for corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the remaining evidence independently establishes the crime and tends to connect the accused with its commission. Id. The presence of an accused in the proximity of a crime, opportunity, and association with a person involved in a crime in a manner suggestive of joint participation, are relevant factors in determining the connection of an accomplice with the crime. Parker v. State, 355 Ark. 639, 144 S.W.3d 270 (2004) (quoting Andrews v. State, 344 Ark. 606, 613-14, 42 S.W.3d 484, 489 (2001)).
Meadows v. State, 2012 Ark. 57, at 6, 386 S.W.3d 470, 475.
|iaIII. Discussion
Collins argues that the trial court erred in denying his motions for directed verdict because there was insufficient evidence to corroborate the accomplice testimony on all counts. Collins reviews the testimony of each accomplice and corroborating witness. He contends that the corroborating witnesses’ statements are vague, uncertain, and made by persons of bias or prejudice. He contends that no witnesses other than accomplices spoke to the July 20, 2009 Summit Bank arson. He acknowledges the similarity in the Summit Bank arson and the crimes occurring on July 30, 2009, and that he sometimes associates with the accomplices. He argues that there is nothing to connect him to this crime besides accomplice testimony other than suspicion and conjecture. Collins claims that the July 30, 2009 crimes are also lacking corroboration for the accomplices’ testimony, and stresses that there is no forensic or trace evidence connecting him to the crimes.
The State contends that the accomplices’ testimony was sufficiently corroborated. The State claims that the accomplices testified that Collins came up with the idea of using the fire bombings of Walgreens and People’s Bank and the attack on Steve’s Marine to divert the police away from their true target, Prince’s Pharmacy. The accomplices said that Collins was the person who assigned them their roles and gave them instructions and materials to carry out their roles. One accomplice testified that he moved with Collins to Florida, and that they “took all kinds of pills from Prince’s Pharmacy.”
| isThe State argues that corroborating witnesses establish the crimes at Wal-greens and People’s Bank, and connect Collins to those crimes. Apart from accomplice testimony, the State argues that there is evidence that establishés the crimes and tends to connect appellant to them. First, Collins was convicted of commercial burglary of Prince’s Pharmacy and theft of property for the drugs stolen, and the State contends that the facts and circumstances of those crimes, along with the break-in at Steve’s Marine, corroborates the accomplices’ testimony that the pharmacy was the target and the arsons were used as decoys. Second, Collins confessed to Derek Walters, and Stephanie Thompson overheard the confession. Third, Lindsey Cook testified that she overheard Collins, Henry, and others talking about robbing a pharmacy before the break-in occurred. She also testified that she spent the night at Collins’s trailer on July 30, 2009; that she thought that Collins borrowed her car that night; that Ellis, Henry, and Booney spent the night at Collins’s trailer that night; the next morning, there were black trash bags scattered about the trailer; and Ellis had a cut on his arm the day after the arsons. Fourth, the physical evidence of the damages to the varying properties, as well as the hammer, tire iron, and concrete chunks, corroborate the accomplices’ testimony. The State claims that this independent evidence of the crimes tends to connect Collins to the ar-sons. Finally, the State contends that Collins’s behavior after the crimes — arranging for Walters’s assault of Henry, and offering to pay Walters to kill Ellis — provide additional corroboration of the arsons. We agree and affirm those convictions.
114The State contends that the corroborating evidence connecting Collins to the Summit Bank arson is the physical damage to the bank and the evidence police recovered from the crime scene. The State contends that this is independent of the accomplices’ testimony, establishes the crime, and tends to connect Collins to it. The State also claims that Collins’s offer of $10,000 to Walters to kill Ellis tends to connect Collins to the Summit Bank arson because Ellis was a witness to the earlier arson.
Collins contests this assertion by the State, claiming that the above evidence establishes the crime and that the accomplices committed the crimes. We agree. These matters do nothing to connect Collins to the crimes. Ellis testified that on July 20, 2009, they did not follow through with Prince’s Pharmacy because he “just wasn’t comfortable going through in pulling it that night.” Also, Walters’s testimony was incoherent in regard to Summit Bank. Accordingly, we reverse Collins’s conviction for the arson of Summit Bank.
Affirmed in part; reversed in part.
PITTMAN and WYNNE, JJ., agree.
.This appeal reaches us for the second time after rebriefing was ordered due to inadequacies in appellant’s abstract and addendum, which have now been corrected. Collins v. State, 2014 Ark. App. 371, 2014 WL 2804985.
. Tamarus Hardwell.
. Arlando Wyrick.
. Even though Collins sets forth two points on appeal, separating the July 20, 2009 Summit Bank arson in Point I from the other charges in Point II, both arguments are identical but for one or two paragraphs; therefore, these points will be addressed together.
. Collins was not charged in connection to the break-in at Steve's Marine. | [
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RHONDA K. WOOD, Judge.
| iThis is a no-merit appeal from a circuit court’s order terminating the parental rights of Sharon Chapman and Shannon Riddle, Sr., to their son S.R., age nine. Counsel for appellants filed a motion to withdraw as counsel and a no-merit brief pursuant to Arkansas Supreme Court Rule 6 — 9(i). Neither parent filed pro se points for reversal. The attorney ad litem filed a letter stating he did not find merit to an appeal and declined his option to file a brief. After a complete review, we affirm the termination and grant the motion to withdraw.
On April 19, 2013, the Arkansas Department of Human Services (DHS) received a report of suspected educational neglect of S.R. due to his being absent from school since March 11, 2013. DHS found the allegation true and opened a protective-service case. On 12May 29, 2013, residents of an apartment complex contacted law enforcement after they observed S.R. “dumpster diving” for food. When law enforcement arrived, they found S.R. with multiple faded bruises on his legs and a bruised eye. S.R. told the police that his dad had “bashed his head into a car” and had whipped him with a belt. The police reported that S.R.’s ribs were visible and he was very thin. Upon further questioning, S.R. reported that he had sometimes gone two months without food and that his dad would not let him go to school because of “my bruises and welts.” DHS fed S.R. chicken nuggets, and when questioned as to why he was eating slowly, he stated “I’m going to save them for later.”
Upon a physical exam, the doctor reported that S.R. was underweight at 58 lbs., had bruises on his eyes and knees, had a lesion on his wrist, expressed suicidal ideations, and had .a dental contusion. The police arrested the father, Shannon Riddle, and charged him with endangering the welfare of a minor. The mother’s whereabouts were unknown. DHS took an emergency hold on S.R.
The court adjudicated S.R. dependent-neglected. This was the third dependency-neglect case involving S.R. While the court’s order stated the goal was reunification, the court approved the DHS case plan of termination and adoption and also set a no-reunification hearing. Seven months later, the court terminated appellants’ parental rights.
In termination-of-parental-rights cases, our standard of review is de novo. We explained in Pine v. Arkansas Department of Human Services as follows:
IsGrounds for termination of parental rights must be proven by clear and convincing evidence, which is that degree of proof that will produce in the finder of fact a firm- conviction of the allegation sought to be established.... Termination of parental rights is an extreme remedy and in derogation of a parent’s natural rights; however, parental rights will not be enforced to the detriment or destruction on the health and well-being of the child.
In order to terminate parental rights, a trial court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration that (1) likelihood that the juvenile will be adopted if the termination petition is granted; and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Additionally, the trial court must also find by clear and convincing evidence that one or more statutory grounds for termination exists.
2010 Ark. App. 781, at 9-10, 379 S.W.3d 703, 708-09 (citations omitted).
Here, the court’s best-interest finding was not clearly erroneous. The evidence showed that S.R. was adoptable and that returning him to his parents’ custody could cause potential harm. First, the caseworker testified that S.R. was adoptable, that there was at least one specific family interested in adopting him, and that his displayed aggression would not hinder adoption. We have held before that evidence like this is sufficient to support the adoptability prong of the court’s best-interest analysis. Cobbs v. Ark. Dep’t of Human Servs., 87 Ark.App. 188, 189 S.W.3d 487 (2004). Second, DHS presented evidence that both parents failed to have stable housing during the seven months the case was open, that this was the third time S.R. had been in foster care, and that he had spent more than three out of his nine years in foster care. Coupled with the physical abuse, educational neglect, and the continued financial and residential instability of the parents, this evidence is sufficient for the court to find that potential harm existed if S.R. were returned a third time to his parents’ custody. Altogether, there is clear and convincing evidence to support the circuit court’s finding that termination was in S.R.’s best interest.
14Next, the court found that DHS proved two statutory grounds for termination of parental rights. The first ground was that the juvenile was adjudicated dependent-neglected and had continued to be placed out of the parents’ home for more than 12 months and, despite a meaningful effort on the part of DHS to rehabilitate the parents and correct the conditions which caused removal, the parents have not remedied the conditions. Ark.Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Supp. 2013). We agree with counsel that the court erred in finding this ground applicable to the present case. Here, S.R. had been out of the home for only seven months at the time of the termination hearing. The court calculated the time out of the home as more than twelve months by adding together the total time S.R. spent in foster care in prior cases. This is considered “stacking” time. We have previously held that it is impermissible to add time in multiple cases to obtain the twelvemonth out-of-home placement as required by this statutory ground. Williams v. Ark. Dep’t of Human Servs., 2013 Ark. App. 622, 2013 WL 5872757. This error does not result in reversal in the present case, however, because the court is required to find only one statutory ground for termination. See Dawson v. Ark. Dep’t of Human Servs., 2011 Ark. 106, 391 S.W.3d 352.
The court’s finding on the second statutory ground was not made in error. It ruled that DHS proved an additional ground by clear and convincing evidence: that the parents had subjected S.R. to aggravating circumstances in that there is little likelihood that services to the family would result in successful reunification. The court made specific findings that DHS had worked with this family on and off for seven years and that the juvenile had spent more than three years in foster care. The court found that although it | shad returned S.R. to the parents twice, reunification was not successful in either case because the end result was a subsequent removal.
Other evidence also showed that reunification was unlikely. At the time S.R. entered foster care in May, 2013, he was living with his father because his mother had moved to Missouri. The mother had moved often since the case began, four times in the month before the hearing alone, including living in (1) Missouri, (2) the homes of several friends, (3) a motel room, (4) the Salvation Army shelter, and (5) an apartment. She receives a check of $630 per month, which supports her, her sixteen year old, and the father. Three months before the hearing, she was arrested for hot-check violations, which she contends were because she did not have enough income to pay her bills. The father likewise testified he had moved several times, including stays in a motel and a shelter. He admits he is completely dependent on the mother’s SSI check and that he has not filed a tax return since at least 2011. The court specifically found that the parents could not support S.R. with- their current finances and had not provided a “meaningful plan” to become capable of caring for S.R.’s needs. The court ultimately found that given all the services provided to the parents over a seven-year period and the parents’ inability to permanently correct the conditions causing the removal, there was little likelihood that additional services would result in a successful reunification. We cannot say that the voluminous evidence of continued parental instability renders the court’s finding on this ground clearly erroneous.
[(¡The dissent contends that the court’s decision allowing DHS to present evidence as to S.R.’s total time in foster care was a potentially meritorious issue. However, we agree with counsel that this is not a meritorious argument. First, the father’s specific objection to the testimony of the past cases was that this evidence could not be used to prove the statutory ground that S.R. had been out of the home for more than twelve months. He argued that it was impermissible to “stack” time, which we agreed with above. But he did not raise the objection in regard to the past cases providing evidence of the aggravated-circumstances ground, even after the attorney ad litem pointed out that it would be relevant on this ground and would put him on notice. We have long held that a party has a burden to make a specific objection and failure to do so precludes its consideration on appeal. Criswell v. Ark. Dep’t of Human Servs., 2014 Ark. App. 255, 435 S.W.3d 26. What is more, even if he had made a sufficient, specific objection, a court can still consider any evidence relevant to the case at hand. A court’s rulings on the admissibility of evidence will not be reversed absent a manifest abuse of discretion. Hopkins v. Ark. Dep’t of Human Servs., 79 Ark.App. 1, 83 S.W.3d 418 (2002). On a merit-based appeal, we would not have ruled that the court abused its discretion by admitting evidence that this young boy had been in and out of foster care for over seven years as relevant to considering his best interest, the likeliho.od of a successful reunification, and the potential for harm upon reunification.
In the seminal case of Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 141, 194 S.W.3d 739, 747-48 (2004), the Arkansas Supreme Court set the |7guidelines for both counsel and the appellate court to follow in no-merit termination-of parental-rights appeals as follows:
[W]e hold that appointed counsel for an indigent parent on a first appeal from an order terminating parental rights may petition this court to withdraw as counsel if, after a conscientious review of the record, counsel can find no issue of arguable merit for appeal. Counsel’s petition must be accompanied by a brief discussing any arguably meritorious issue for appeal. The indigent parent must be provided with a copy of the brief and notified of her right to file points for reversal within thirty days. If this court determines, after a full examination of the record, that the appeal is frivolous, the court may grant counsel’s motion and dismiss the appeal. If, however, we find any of the legal points arguable on their merits, we will appoint new counsel to argue the appeal,
(citations omitted).
Counsel has complied with the above guidelines. Counsel filed a motion to withdraw and a contemporaneous brief in which she has addressed all potentially meritorious arguments and explained why they ultimately would not lead to a successful appeal. Likewise, our court has conducted a complete review under the Linker-Flores standard and has determined that the appeal is frivolous. We therefore grant counsel’s motion to withdraw and affirm.
Affirmed; motion to withdraw granted.
WYNNE, GRUBER, HIXSON, and BROWN, JJ., agree.
HARRISON, J., dissents.
. When asked, S.R. stated there were 60 days in two months and 24 hours in a day.
. The parents moved in together two weeks before the hearing, and the father has no income source.
. The mother did not object. | [
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DAVID M. GLOVER, Judge.
| Appellant, Stuart Deaton, and appellee, Alyssa Morgan, are the unmarried parents of a minor female child, M.D. Stuart appeals from the October 24, 2013 order granting custody of the child to Alyssa. He contends that the trial court erred 1) in considering evidence presented by Alyssa for any purpose other than Stuart’s fitness to have custody, and 2) in placing custody with Alyssa. We affirm.
Background
On November 9, 2012, when M.D. was approximately four months old, Stuart filed a motion for ex parte temporary custody. He also filed a petition to establish paternity, which Alyssa acknowledged. At the December 12, 2012 hearing on Stuart’s motion, Stuart appeared with his counsel. Alyssa appeared pro se, having never been served but waiving service of summons on the record. She also acknowledged that she and Stuart had reached a temporary accord, and she approved a temporary order (which was not actually entered until April 10, 1⅞2013) by which Stuart would have temporary custody of M.D. and Alyssa would have supervised visitation. The order provided that this “arrangement shall continue until this matter is further heard by the Court.” On March 26, 2013, Alyssa’s counsel entered his appearance. Following a hearing on April 10, 2013, the trial court entered its May 6, 2013 order, which established a visitation schedule for Alyssa, eliminated the requirement that visitation be supervised, provided that the temporary custody and visitation was without prejudice, and made clear that a full hearing on the merits would be set by the trial court to establish what was in the child’s best interest and that an attorney ad litem would be appointed.
The full hearing on the merits took place August 2, 2013. The parties and M.D. were each represented by counsel at the hearing, and posthearing briefs were submitted. By order entered October 24, 2013, the trial court stated that “[tjhis matter came on for hearing Friday, August 2, 2013, on the issue of the custody of [M.D.],’.’ and determined that it was in the child’s best interest for custody to be with Alyssa. Stuart was awarded reasonable visitation and ordered to pay child support and the balance of the appointed ad litem’s fee.
In this order, the trial court further recounted the unusual procedural history of the case, noting that it had earlier placed temporary custody with Stuart “without prejudice” to be followed by a full hearing on the merits. The order then explained in part:
6. That on the 2nd day of August 2013, a full hearing on the merits was held. Petitioner appeared with his new/substituted attorney, Mr. Ronald Griggs. Respondent appeared with her attorney, Mr. Lloyd Smith and Ms. Amy Freedman appeared on behalf of the minor child, ..., as the child’s attorney ad litem.
|RAfter petitioner rested his case in chief he moved to prohibit any witnesses who may be called by respondent to testify because there had been no pleadings seeking affirmative relief. This motion was denied by the Court with the comment that neither party had filed pleadings seeking affirmative relief.
7. That the Court has reviewed the briefs submitted, its notes from the hearings and the docket entries. After a careful consideration of all the evidence and law, the Court agrees with the ad litem’s description of this case as being “strange” procedurally. In fact, this case is a “train wreck” procedurally.
As the Court acknowledged following the full hearing on August 2, 2013, “... Court opines there is nothing which supports the Ex Parte Order.” Accordingly, the Ex Parte Order is set aside and dismissed.
8. That if the Ex Parte Order is vacated then custody of this child would and should revert to the biological mother, ACA 9-10-113. However, because of procedural peculiarities of this case, coupled with the pleading deficiencies, the Court feels compelled to also address “the best interests” of this child before awarding custody.
The respondent mother’s childhood and young adult history is sad and her experience tragic. As a mid-teen, she elected to place her firstborn for adoption because it was in her child’s best interest to do so.
At still a young age, she had her second child, a daughter ... born during her marriage to Dayberry. This is the same child that she has continued to raise throughout the life of this particular lawsuit. And, according to her in-laws with whom she lives, she has done an outstanding job of raising [the second child].
The evidence presented prior to the parties’ separation establishes respondent as the primary care giver of [both children]. Both she and petitioner did some drugs occasionally, but that conduct is now behind them.
[The two little girls] need to be reunited as sisters.
9.That it is the Court’s opinion that it would be in [the minor child’s] best interest that her custody be restored to her mother, respondent.
| ¿Procedural argument
For his first point of appeal, Stuart contends that the trial court erred in considering evidence presented by Alyssa for any purpose other than Stuart’s fitness to have custody. That is, Stuart takes the position that the sole issue before the trial court should have been his request that the temporary-custody order be made permanent because Alyssa had filed no affirmative pleading “asking for any relief other than denying the allegations in the motion for temporary custody filed by [Stuart].” We disagree.
Arkansas Code Annotated section 9-10-113 addresses custody of a child born outside of marriage:
9-10-113. Custody of child born outside of marriage.
(a) When a child is born to an unmarried woman, legal custody of that child shall be in the woman giving birth to the child until the child reaches eighteen (18) years of age unless a court of competent jurisdiction enters an order placing the child in the custody of another party.
(b) A biological father, provided he has established paternity in a court of competent jurisdiction, may petition the circuit court in the county where the child resides for custody of the child.
(c) The court may award custody to the biological father upon a showing that:
(1) He is a fit parent to raise the child;
(2) He has assumed his responsibilities toward the child by providing care, supervision, protection, and financial support for the child; and
(3) It is in the best interest of the child to award custody to the biological father.
(d) When in the best interest of a child, visitation shall be awarded in a way that assures the frequent and continuing contact of the child with the mother and the biological father.
(Emphasis added.)
|sThe trial court described the procedural history of this case as a “train wreck,” and we agree. But, even so, it can be fairly said that under the statute quoted above, custody of the child under the law was with Alyssa until a court of competent jurisdiction placed custody with another person. Even though the trial court granted temporary custody to Stuart, it was always clear that final action on the issue of custody was to follow, after a full hearing on the merits. When everyone gathered for the final hearing on August 2, 2013, it was clear, or should have been, that permanent custody was the issue to be decided.
Stuart presented his custody case, but then objected to Alyssa’s being able to move forward with any evidence of her fitness to have custody of M.D. because she had not filed an affirmative pleading. In ruling on the objection, the trial court stated:
Let me put it this way, there is no affirmative pleading period, by anybody. There is nothing driving this hearing today. There was nothing driving the hearing on April 10th. Everybody forgot to file a pleading. So that motion is overruled. Call your first.
In short, neither side filed appropriate pleadings. Nonetheless, custody of M.D. had been placed with Stuart only temporarily, and it was always clear that a final hearing on that issue would follow. We find no merit in Stuart’s argument that the state of the pleadings barred Alyssa from presenting any evidence for any purpose other than to determine his fitness for custody. Stuart’s reliance upon Arkansas Rules of Civil Procedure 8(a) (pleading claims for relief), and 15(b) (amendment of pleadings to conform to evidence presented at trial when issues are tried by express or implied consent), along with cases addressing those rules, is misplaced under the circumstances of this case and simply not convincing. There are two sides to a custody coin, and once Stuart put on his “custody” case, Alyssa was entitled to put on her full “custody” case, which rightly included evidence beyond Stuart’s fitness.
|fi Custody
For his second point of appeal, Stuart contends that the trial court clearly erred in granting custody of M.D. to Alyssa. We disagree.
In reviewing child-custody cases, we consider the evidence de novo, but will not reverse a circuit court’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Smith v. Hudgins, 2014 Ark. App. 150, 433 S.W.3d 265. We give due deference to the superior position of the circuit court to view and judge the credibility of the witnesses. Id. This deference to the circuit court is even greater in cases involving child custody, as a heavier burden is placed on the circuit court to utilize, to the fullest extent, its powers of perception in evaluating the witnesses, their testimony, and the best interest of the child. Id. A finding is clearly erroneous when we are left with a definite and firm conviction that the trial court made a mistake. Sykes v. Warren, 99 Ark.App. 210, 258 S.W.3d 788 (2007).
As quoted previously, Arkansas Code Annotated section 9-10-113 provides that a child born to unmarried parents shall be in the child’s mother’s custody unless a court of competent-jurisdiction enters an order placing the child in the custody of another party. Smith v. Hudgins, supra. A biological father may petition the court for custody if he has established paternity in a court of competent jurisdiction. Id. Custody may be awarded to a biological father upon a showing that 1) he is a fit parent to raise the child, 2) he has assumed his responsibilities toward the child by providing care, supervision, protection, and financial support for the child, and 3) it is in the best interest of the child to award custody to the biological father. Id.
|7As noted by the trial court, neither party properly pled in this case. Stuart never truly petitioned the trial court for custody under section 9-10-113. Rather, he sought temporary custody and then in paragraph 7 of that petition, he included the following sentence: “Further, it is in the best interest of the parties’ minor child that the plaintiff be granted full and permanent custody of the parties’ minor child.” As the trial court further noted in its order following the final hearing in August:
8. That if the Ex Parte Order is vacated then custody of this child would and should revert to the biological mother, ACA 9-10-113. However, because of procedural peculiarities of this case, coupled with the pleading deficiencies, the Court feels compelled to also address “the best interests” of this child before awarding custody.
The trial court set aside and dismissed the order that granted temporary custody to Stuart. In fact, at the end of the August 2013 hearing, arrangements were made for hair-follicle tests (which proved negative) and posthearing briefs were scheduled, but the trial court also commented, “I will tell you right now in my opinion that nothing, nothing, supported the Ex Parte Order, nothing. Had she [Alyssa] not caved on December 12, 2012,1 doubt if we would be here today.” In an abundance of caution, however, the trial court made a specific finding in its May 6, 2013 order that it was in the child’s best interest for Alyssa to have custody. We find no clear error in that finding.
At the August 2013 hearing, both parties testified, along with six other witnesses, and several exhibits were introduced. Alyssa was the primary care giver for M.D. until Stuart assumed custody. Testimony was presented that Alyssa had lived in a stable home environment since the day after Thanksgiving 2012, and that she lived with her other daughter and that daughter’s grandparents, the Dayberrys, who were Alyssa’s in-laws at the Rtime. Alyssa acknowledged that she was separated from her husband, David Dayberry, and that she planned to divorce him. She remained close to her in-laws, however, who testified that Alyssa was doing an outstanding job of raising their granddaughter, that David had essentially abandoned the child and had no contact with her, that he was not welcome in their house, and that their granddaughter and M.D. played together and seemed to have bonded. The trial court stated in its letter opinion that the little girls needed to be reunited as sisters.
In addition, the trial court was presented with testimony that Alyssa had maintained employment during that time period, sometimes working two jobs; that she brought home approximately $825 a month, with bills amounting to $584 a month; that she worked from 5:50 a.m. until 1:50 p.m.; that her other daughter went to daycare; and that M.D. would also go to daycare. Photographs of the Day-berrys’s house were introduced. There was testimony that Alyssa was welcome to stay there as long as she needed to do so and that she had her own private area for herself, the daughter living with her, and for M.D. if she were awarded custody. There was also testimony that Alyssa was a loving mother and that she responsibly fulfilled the child’s needs, i.e., Alyssa did not rely upon the grandparents to care for her child, although that they did help in getting the child to daycare in the morning after Alyssa had left for work.
Giving due deference to the trial court’s superior position to evaluate the testimony and determine M.D.’s best interest, we are not left with a definite and firm conviction that a mistake was made in awarding custody of M.D. to Alyssa.
Affirmed.
HARRISON and WYNNE, JJ., agree. | [
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Karen R. Baker, Judge.
Appellant, Karen Bohannon, appeals from a decision by the Workers’ Compensation Commission reversing the Administrative Law Judge (ALJ) and finding that she failed to meet her burden of proof that she was entitled to additional medical treatment. On appeal, she argues that the evidence was insufficient to support the Commission’s decision, and therefore, it must be reversed. We agree and reverse and remand for an award of benefits.
It is undisputed that appellant sustained a compensable work-related injury on June 21, 2005. The testimony showed that on June 21, 2005, maintenance personnel were cleaning the air conditioning units on top of appellant’s office building with a mixture of water and Kleencoil — a solution containing 2-butoxyethanol, sodium metasilicate, and isopropyl alcohol. The solution was placed into a hand sprayer and sprayed onto the evaporator coils of each air conditioning unit. The instructions for use of the chemical indicate that the units were to be turned off; however, the maintenance personnel did not turn off the units before spraying the chemical onto the coils. As a result, the chemical was dispensed through the air conditioning units into the office where appellant worked.
While sitting at her desk, appellant and two other coworkers began noticing a “chemical” smell emanating from an overhead air conditioner vent. Her two coworkers became ill, experiencing lightheadedness, dizziness, and headaches. Appellant noticed the odor, but continued working. Eventually, appellant also became light-headed and got up from her workstation in an attempt to get some water and go to the breakroom. Appellant testified that she was having difficulty walking and had to lean on the wall for support. She then went outside, where the other employees were sitting, to get some fresh air. At this point, appellant was unable to speak coherently. An ambulance was called. When the ambulance arrived, the paramedics noted that appellant and one other coworker were unconscious. All three of the workers testified that they still suffered from chronic headaches and that the various medications they had taken were not successful in relieving their headache pain.
At the emergency room, appellant was described as suffering from chemical inhalation. The emergency room report indicated “Pt was working in her space and someone was cleaning ducts. ... Pt awake but drowsy pt. trying to speak but words are garbled.” A CT scan performed at the emergency room did not present any abnormalities, and a toxicological screen was also negative. Emergency room records indicated appellant was suffering from episodes of aphasia (a speech impediment, in this case, stuttering, and an inability to speak clearly). Dr. Shari DeSilva, a neurologist, stated in her report that appellant’s “lightheadedness and diffuse ‘weakness’ (which may reflect unsteadiness), and dysarthria and headache following exposure to inhaled 2-Butoxyethanol, among other compounds, waxes and wanes. Her examination suggests cerebellar involvement.”
Appellant was released from the emergency room that day; however, her symptoms persisted, and she saw Max Beasley, a nurse practitioner, the next day. Mr. Beasley noted that appellant was aphasic and had erythema (reddening) in her nasal passages. He called an ambulance to take her to the hospital. At the hospital, appellant had trouble speaking and was complaining of a headache and pain behind her left eye. She also had blurring of her left eye and swelling of her lips and mouth. A second CT scan of appellant’s brain was taken, and the results were negative. On June 23, 2005, an MR.I of the brain and a MRA of the “circle of Willis” were taken with the following impression: “1. Normal MRI of the brain. 2. Normal MRA of the circle of Willis.” Dr. Howard opined in a Discharge Summary Report in June 24, 2005, that appellant had inhaled a chemical at work that was fairly innocuous and unlikely to have caused any neurological symptoms. He noted that appellant had been given medication and that her speech had improved considerably. He released appellant and recommended a follow-up with her family physician, Dr. Bicak, in two weeks.
On July 5, 2005, appellant was taken to the emergency room after becoming unresponsive at work. The emergency-room report indicated that she “remains dysphasic” with “all utterances unintelligible.” A CT scan, carotid ultrasound, and MRI of her brain were normal. Dr. David Ewart examined appellant and opined that appellant suffered from “intermittent expressive aphasia of uncertain etiology.” He further stated, “One could consider the possibility of repeated chemical exposure. I am unaware of a chemical exposure that causes intermittent expressive aphasia. Another possibility would be conversion reaction.” He recommended admitting Ms. Bohannan to Northwest Medical Center, placing her on Plavix, and obtaining an ultrasound of the carotids.
On July 9, 2005, Dr. Gary Moffitt examined appellant and determined that without additional testing, he was not sure “what [was] going on with Ms. Bohannon.” His report indicated that he was unsure whether appellant had a complex migraine or if the chemical had anything to do with her symptoms. Therefore, he opined that “more work needfed] to be done.” Because of the nature of appellant’s job and her health condition, he determined that she should be off work.
Dr. Reginald Rutherford, a neurologist, also examined appellant on July 26, 2005. Based on a review of her symptoms, Dr. Rutherford concluded that it was likely that her problems were unrelated to her migraine headaches or to an acute psychosis; a more probable explanation was considered to reside within the diagnosis of conversion reaction. In order to help with a diagnosis, Dr. Rutherford recommended that she undergo a SPECT scan of her brain to evaluate brain function rather than brain structure. The scan was performed on August 12, 2005. In his report, Dr. Rutherford stated:
Her SPECT scan raises the possibility of an abnormality or lesion left hemisphere. This was discussed with the radiologist. This may also represent artifact. To clarify whether or not there is evidence of a structural abnormality left hemisphere not disclosed on prior MRI imaging of the brain arrangements will be made for a current MRI study of the brain. This is to be correlated with the SPECT scan and will be performed at St. Vincent’s Infirmary. Ms. Bohan-non will be seen in follow up once this is completed.
Dr. Moffitt noted that he agreed with Dr. Rutherford’s recommendations for a SPECT scan; however, because appellee controverted the treatment, the comparison MRI of the brain was not performed.
Dr. Moffitt saw appellant for a follow-up examination on September 13, 2005. On that day, he noted that although appellant still suffered from headaches, her condition had improved. He also noted that her speech had improved. He released her to return to full-duty work with no return appointment and no permanent impairment.
On October 11, 2005, appellant was seen for her complaint of slurring speech. It was noted that she had been exposed to a chemical at work. However, a CT scan of her head showed no abnormalities. Dr. Ehrhart noted that appellant’s tests were normal and assessed her with dysarthria (slurred speech), hypertension, and diabetes. Dr. Ehrhart wanted appellant to continue taking aspirin, start propranolol for migraine prophylaxis, and see a speech therapist. Dr. Ehrhart noted also that conversion reaction was also a possibility.
Dr. Michael Morris, also a neurologist, examined appellant in December 2005. In his report dated December 5, 2005, he noted her hesitancy in speech and “some slowness in following commands such as finger tapping and arm roll.” He concluded that appellant had “neurologic symptoms related to a possible exposure at work,” and he wanted to review all of her medical records.
Appellant again sought emergency treatment on December 12, 2005. She was examined by her family physician, Dr. Bicak, who diagnosed her with a headache with dysarthria, hypertension, and diabetes. Dr. DeSilva also examined appellant again on December 12, 2005. She concluded that appellant suffered from vertebrobasilar migraine headaches with some psychogenic overlay and needed an “overnight pulse oximetry as a screen for sleep apnea and ... a trial of 100% 02 by rebreathing mask for 20 minutes. This is often helpful in breaking migraine status.”
Dr. Howell Foster, Director of the Arkansas Poison Control Center, testified generally as to exposure to 2-butoxyethanol. While not a medical doctor, Dr. Foster has an undergraduate degree in pharmacy and is a doctor of pharmacy. Dr. Foster testified that in his professional opinion, 2-butoxyethanol was not the cause of appellant’s headaches and speech problems. At the “heart” of that opinion was the fact that appellant did not have eye, nose, and skin irritations in conjunction with her headaches. He further based this opinion on his belief that appellant was not exposed to a level of 2-butoxyethanol significant enough to lead to her current symptoms. When questioned further in the deposition about the basis for his opinion, Dr. Foster admitted that he was unaware of the dimensions of the room where appellant worked; did not know the number of vents in the room; did not know how much 2-butoxyethanol was put in the air conditioner unit; did not know how much of the chemical was blown into the room; and did not know how close appellant was sitting to a vent. Moreover, in his deposition he stated that he did not know how long appellant was exposed to the chemical before becoming ill and admitted that the length of her exposure was “not described anywhere.” He also stated in his deposition that it was his understanding that her exposure was only “a few minutes.”
A prehearing order was filed on March 16, 2006, and appellant claimed that she was entitled to additional medical treatment based upon multiple recommendations by her doctors. On August 7, 2006, the ALJ found that appellant was entitled to additional medical treatment; that Dr. Morse would be the treating physician for future medical treatment; and that appellee was responsible for unpaid medical benefits provided in connection with appellant’s compensable injury. Appellees filed a notice of appeal for review by the Commission. On June 28, 2007, the Commission issued an opinion reversing the ALJ’s finding that appellant was entitled to additional medical treatment. The Commission’s opinion explained that appellant failed to prove the following: that she was entitled to additional medical treatment from Dr. Rutherford and Dr. Morse; that she was entitled to a psychological evaluation at the appellees’ expense; that additional treatment and/or referrals from Dr. Rutherford or Dr. Morse were reasonably necessary in connection with the compensable inhalation injury; that treatment for sleep apnea and migraines recommended by Dr. DeSilva was reasonably necessary in connection with the compensable inhalation injury; and that continued medications for headaches were reasonably necessary in connection with the compensable inhalation injury. This appeal followed.
When reviewing a decision of the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Liaromatis v. Baxter County Reg’l Hosp., 95 Ark. App. 296, 236 S.W.3d 524 (2006) (citing Clark v. Peabody Testing Serv., 265 Ark. 489, 579 S.W.2d 360 (1979); Crossett Sch. Dist. v. Gourley, 50 Ark. App. 1, 899 S.W.2d 482 (1995)). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; even if a preponderance of the evidence might indicate a contrary, result, if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. St. Vincent Infirmary Med. Ctr. v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996). The Commission is required to weigh the evidence impartially without giving the benefit of the doubt to any party. Keller v. L.A. Darling Fixtures, 40 Ark. App. 94, 845 S.W.2d 15 (1992).
Our workers’ compensation law provides that an employer shall provide the medical services that are reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. § ll-9-508(a) (Supp. 2007); Fayetteville Sch. Dist. v. Kunzelman, 93 Ark. App. 160, 217 S.W.3d 149 (2005). The employee has the burden of proving by a preponderance of the evidence that medical treatment is reasonable and necessary. Kunzelman, supra. What constitutes reasonably necessary medical treatment is a question to be determined by the Commission. White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001) (citing Gansky v. Hi Tech Eng’g, 325 Ark. 163, 924 S.W.2d 790 (1996)).
The sole issue before this court is whether the Commission erred in determining that additional medical treatment, including but not limited to Dr. Rutherford’s recommendations, was not necessary. We hold that the Commission erred.
First, the Commission relied heavily on Dr. Foster’s expert opinion, and it is clear from the record that Dr. Foster’s opinion was based on several erroneous assumptions. Specifically, Dr. Foster admitted that he was unaware of the dimensions of the room where appellant worked; did not know the number of vents in the room; did not know how much 2-butoxyethanol was put in the air conditioner unit; did not know how much of the chemical was blown into the room; and did not know how close appellant was sitting to a vent. Moreover, he was unaware of the length of her exposure. He assumed that appellant’s exposure time to the chemical was only a few minutes. However, appellant’s coworkers testified that they left the work area thirty minutes after noticing the chemical odor, but appellant did not accompany them at that time. Rather, she remained behind at her workstation. Therefore, contrary to Dr. Foster’s assumption, appellant’s exposure was greater than thirty minutes.
Dr. Foster also made it clear during his deposition that the key factor in his opinion that appellant’s headaches and speech problems were not caused by 2-butoxyethanol was that appellant did not experience any eye, nose, and skin irritation in conjunction with her headaches. Dr. Foster agreed that those findings were at the “heart” of his opinion. Contrary to Dr. Foster’s opinion, the emergency-room reports revealed that immediately following her exposure, appellant experienced pain and blurry vision in her left eye, had redness in her nasal chambers, and appeared to have swelling in her lips and mouth.
As a general rule, the appellate courts defer to the Commission on issues involving the weight of the evidence and the credibility of witnesses. See Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). Furthermore, it is well settled that the Commission has the authority to determine its medical soundness and probative force. Williams v. Brown Sheet Metal, 81 Ark. App. 459, 105 S.W.3d 382 (2003). The Commission has a duty to use its experience and expertise in translating the testimony of medical experts into findings of fact. Id. However, these standards must not totally insulate the Commission from judicial review because this would render this court’s function meaningless in workers’ compensation cases. Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 57 S.W.3d 735 (2001).
In McDonald v. Batesville Poultry Equipment, 90 Ark. App. 435, 445-46, 206 S.W.3d 908, 916 (2005), this court held that:
We hold that no substantial evidence supports the Commission’s conclusion that McDonald is not permanently and totally disabled. The Commission relied in significant part on Naylor’s assessment that jobs were available to McDonald. Naylor testified, however, that her assessment of available jobs was produced before the psychological and psychiatric reports were made, and she testified that she had not considered them prior to forming her opinion. Additionally, the Commission ignored these psychological and psychiatric reports, which corroborated McDonald’s testimony that he is functionally illiterate and which clearly assessed further limitations on his ability to perform work. We hold that reasonable minds could not come to the conclusion that McDonald is not totally and permanently disabled.
Also, in Easton v. H. Boker & Co., 226 Ark. 687, 691, 292 S.W.2d 257, 260 (1956), citing the Eighth Circuit case of United States v. Thornburgh, 111 F.2d 278, 280 (8th Cir. 1940), our supreme court stated:
In the case of United States v. Thornburgh, 111 F.2d 278, 280, Judge Sanborn, speaking for the Eighth Circuit Court of Appeals, used this language, which we find apropos here:
A reviewing court, however, is not always required to accept as substantial evidence the opinions of experts. ‘Where it clearly appears that an expert’s opinion is opposed to physical facts or to common knowledge or to the dictates of common sense or is pure speculation, such an opinion will not be regarded as substantial evidence.’ Svenson v. Mutual Life Ins. Co. of New York, 8 Cir., 87 F.2d 441, 445. See also United States v. Hill, 8 Cir., 62 F.2d 1022, 1025; United States v. Doublehead, 10 Cir., 70 F.2d 91, 92.
Moreover, in O.K. Processing, Inc. v. Servold, 265 Ark. 352, 358, 578 S.W.2d 224, 228 (1979) (citing Easton, supra), our supreme court stated that “[t]he opinion of an expert will be considered to be substantial evidence unless it clearly appears that the expert’s opinion is opposed to physical facts or to common knowledge or to the dictates of common sense, or is pure speculation.”
In this case, when we view the evidence in a light most favorable to the Commission, we cannot say that, when confronted with the same evidence, reasonable minds could reach the same conclusion as the Commission. Dr. Foster’s opinion, upon which the Commission heavily relied, was based upon inaccurate assumptions and speculation. Moreover, at the “heart” of Dr. Foster’s opinion was the assumption that appellant did not suffer from the symptoms that would normally accompany chemical inhalation. Yet the medical reports reveal that she did in fact suffer from such symptoms; therefore, Dr. Foster’s opinion was based upon factual errors.
Additionally, Dr. Rutherford recommended a SPECT scan, which showed the possibility of an abnormality or lesion in the left hemisphere. Due to that finding, Dr. Rutherford recommended a current MRI of appellant’s brain with which to compare the SPECT scan results. However, because appellee refused to pay for the MRI, it was never done. In Gansky v. Hi-Tech Engineering, 325 Ark. 163, 169, 924 S.W.2d 790, 794 (1996) our supreme court held that:
Under these circumstances when the treating neurosurgeon has prescribed a functional capacity assessment and that was not done because Hi-Tech would not pay for it, we cannot agree with the Commission that additional medical treatment was not reasonably necessary or that the healing period had ended. We conclude that fair-minded persons, viewing the same evidence, could not decide otherwise.
We are confronted in this case with the same situation our supreme court addressed in Gansky, supra, and likewise we hold that substantial evidence does not support the Commission’s decision denying appellant additional medical treatment. Accordingly, we reverse and remand for an award of benefits.
Reversed and remanded.
Griffen and Vaught, JJ., agree. | [
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John B. Robbins, Judge.
Stephanie Freeman and Konecny Insurance Services, Inc., have appealed from an order of the Sebastian County Circuit Court granting a preliminary injunction in an action brought by Freeman’s former employer, appellee Brown Hiller, Inc. (BHC), for breach of Freeman’s employment contract and for misappropriation of BHC’s trade secrets. BHC has filed a cross-appeal, arguing that the preliminary injunction was not broad enough. We affirm on direct and cross-appeal.
BHC is an insurance agency in Fort Smith for which Freeman went to work in 2000. In 2001, she began selling insurance for BHC and signed a contract that contained the following nondisclosure and noncompetition provisions:
7. Trade Secrets. The Employee shall not, at any time, or in any manner, either directly or indirectly, divulge, disclose, or communicate to any person, firm or corporation, in any manner whatsoever, any information concerning any matters affecting or relating to the business of the Employer, including without limiting the generality of the foregoing, any of its customers, prices, or premiums it obtains or has obtained from the sale of, or at which it sells or has sold, any insurance policies, the renewal dates of any such policies, or any other information concerning the business of Employer or its clients, its manner of operation, its plans, processes, or other data, without regard to whether all of the foregoing matters will be deemed confidential, material, or important, the parties hereto stipulating that as between them, the same are important, material and confidential and greatly affect the effective and successful conduct of the business of the Employer and the Employer’s goodwill, and that any breach of the terms of this paragraph shall be a material breach of this Agreement. Employee acknowledges that damages would be substantial and difficult to measure, therefor [sic] any breach or threatened breach of this provision could result in substantial damages to the Employer for which Employer would be entitled to immediate injunctive relief.
8. Covenant Not to Compete. Employee shall not, during the term of this contract or for a term of two (2) years immediately following the termination of this contract, regardless of who initiated the termination, directly or indirectly for himself/herself or on behalf of or in conjunction with any other person, firm, partnership, or corporation, solicit or attempt to solicit the business or patronage of any person, firm, corporation, or partnership of any of the customers or clients of the Employer. All of the terms of Section 7. above shall remain in full force and effect for a period of two (2) years after the termination of Employee’s employment. The Employee further agrees that he/she will return all manuals, expiration fists, prospect lists, whether such list be on hard copy, computer, computer diskette, tape, or other devices, and all other materials, supplies, and equipment used by Employee during his/her employment with the Employer. It is understood and agreed that Employee shall not remove any of the foregoing from the premises of Employer.
BHC’s employee handbook also included a nondisclosure statement.
Freeman’s agreement with BHC was renewed annually until January 26, 2007, when she resigned. The next month, she began work as an insurance-sales representative with Konecny, one of BHC’s direct competitors. On March 1, 2007, BHC sued Freeman and Konecny. It asserted causes of action for fraud and breach of contract and the duty of loyalty against Freeman. Against Konecny, it asserted tortious interference with a contractual relationship. Against both appellants, BHC asserted violations of the Arkansas Trade Secrets Act. BHC alleged that they had taken its confidential and proprietary information; that Freeman had, after accepting employment with Konecny but before resigning from BHC, copied BHC’s “Standard Benefits Summary/Proposal Format”; that Freeman had solicited business for Konecny using this format; that she had misappropriated BHC’s proprietary “Written Services Time Line”; and that, before and after resigning from BHC, Freeman solicited its current clients to move their business to Konecny. According to BHC, at least four clients had either moved or attempted to move their accounts from BHC to Konecny. Recounting the considerable effort it took to protect the confidentiality of its trade secrets and the harm that appellants had already caused and would cause it in the future, BHC requested injunctive relief and damages.
BHC moved for a preliminary injunction restraining appellants from using, disclosing, or providing to any third party any documents or information obtained from BHC or relating to BHC and its customers; destroying, secreting, or altering any documents or information obtained from BHC or relating to BHC or any of its customers; and soliciting or attempting to solicit any customer of BHC through the use of BHC’s confidential proprietary information. It also asked for an injunction requiring appellants to return all records, documents, and information pertaining to BHC or its customers. In response, appellants argued that the restrictive covenants were overly broad and unenforceable and that the allegedly misappropriated documents were not trade secrets.
After a hearing, the court granted a preliminary injunction, finding that BHC had a protectable interest in its stock of customers; that the terms of the covenant not to compete were reasonable; that BHC had approximately three thousand customers and ten percent of the insurance business in Sebastian County; and that, because there was no geographic limitation in the covenant, Freeman was free to solicit and accept insurance business in Fort Smith and Sebastian County so long as it was not from BHC’s customers. The court ruled that BHC had demonstrated a likelihood of success on the merits of its claims that Freeman had attempted to solicit insurance business from its customers; that she had breached the employment agreement; that one or more of the items listed in Paragraph 7 of the employment agreement were BHC’s trade secrets, which had been misappropriated; and that BHC would suffer immediate and irreparable harm in the absence of preliminary injunctive relief.
The court ordered Freeman to refrain from doing the following:
1. Stephanie Freeman shall not, for a term of two (2) years following January 26, 2007, directly or indirecdy for herself or on behalf of or in conjunction with any other person, firm, partnership, or corporation, solicit or attempt to solicit the business or patronage of any person, firm, corporation, or partnership of any of the customers or clients of BHC.
2. Stephanie Freemen shall not, for a term of two (2) years following January 26, 2007, in any manner, either directly or indirectly, divulge, disclose, or communicate to any person, firm, or corporation, in any manner whatsoever, any trade secrets or confidential information of BHC, including its customers, prices, or premiums it obtains or has obtained from the sale of, or at which it sells or has sold, any insurance policies, the renewal dates of any such policies, or any other information concerning the business of Employer or its clients, its manner of operation, its plans, processes, or other data.
BHC moved for additional findings of fact on the ground that the circuit court had failed to make any findings of fact or conclusions of law with respect to the misappropriation of trade secrets by either appellant. The trial court denied that motion. Appellants filed a notice of appeal, and BHC filed a notice of cross-appeal.
Appellants argue that the trade-secrets provision and the covenant not to compete in the contract are unenforceable because they are overly broad. BHC argues on cross-appeal that the trial court should have also based its injunction on the Trade Secrets Act and enjoined both appellants from misappropriating its trade secrets.
Arkansas Rule of Appellate Procedure-Civil 2(a)(6) provides that an appeal may be taken from an 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. See Jaraki v. Cardiology Assocs. of N.E. Ark., P.A., 75 Ark. App. 198, 55 S.W.3d 799 (2001). We review a trial court’s ruling on a request for a preliminary injunction under the abuse-of-discretion standard. Potter v. City of Tontitown, 371 Ark. 200, 264 S.W.3d 473 (2007). In determining whether to issue a preliminary injunction, the trial court must consider (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. Id. When an appeal reaches us via an order granting or denying a preliminary injunction, we will not delve into the merits of the case further than is necessary to determine whether the trial court exceeded its discretion. Id. The sole question on appeal is whether the trial court departed from the rules and principles of equity in making the order and not whether we would have made the order. Id.
The prospect of irreparable harm or lack of an otherwise adequate remedy is the foundation of the power to issue injunctive relief. Three Sisters Petroleum, Inc. v. Langley, 348 Ark. 167, 72 S.W.3d 95 (2002). The supreme court has recognized that an action for damages is inadequate in a case involving the breach of a covenant not to compete. Bailey v. King, 240 Ark. 245, 398 S.W.2d 906 (1966). The test for determining the likelihood of success on the merits is whether there is a reasonable probability of success in the litigation. Three Sisters Petroleum, Inc. v. Langley, supra. Consideration of this issue will require determining whether this covenant meets the requirements for a non-compete agreement in Arkansas. See, e.g., Moore v. Midwest Distrib., Inc., 76 Ark. App. 397, 65 S.W.3d 490 (2002).
Direct appeal
Appellants argue that the trade-secrets and noncompetition provisions are unenforceable because they do not contain a geographic restriction; they do not limit the nondisclosable information to the accounts that Freeman personally serviced; and they forbid her from soliciting any customer of BHC. They contend that the contract’s trade-secrets provision is unenforceable because it is really an overly-broad covenant not to compete that is masquerading as a confidentiality and nondisclosure agreement. According to appellants, these provisions effectively prohibit Freeman from working in the insurance industry at all. They assert that it is permissible for Freeman to use her experience and knowledge, which was gained during her employment with BHC, in her new business without violating the contract or any law.
In order for a non-compete agreement to be valid, three requirements must be met: (1) the covenantee must have a valid interest to protect; (2) the geographical restriction must not be overly broad; and (3) a reasonable time limit must be imposed. Advanced Envtl. Recycling Tech., Inc. v. Advanced Control Solutions, Inc., 372 Ark. 286, 275 S.W.3d 162 (2008). If the restraint prohibits the promisor from engaging in activities that are unnecessary to protect the promisee, the covenant is unreasonable. See Easley v. Sky, Inc., 15 Ark. App. 64, 689 S.W.2d 356 (1985). Whether the restraint is reasonable is to be determined by considering whether it is only broad enough to afford a fair protection to the interest of the party in whose favor it is given and not so large as to interfere with the interests of the public. Girard v. Rebsamen Ins. Co., 14 Ark. App. 154, 685 S.W.2d 526 (1985).
We view covenants not to compete differently based on whether they grow out of an employment relationship or whether they are made in connection with the sale of a business. Covenants not to compete in employment contracts are subject to stricter scrutiny than those connected with a sale of a business. HRR Ark., Inc. v. River City Contractors, Inc., 350 Ark. 420, 87 S.W.3d 232 (2002). Even in the employment relationship, however, an em ployer has a legitimate desire in seeing that a former employee does not appropriate its customers. See Quality Liquid Feeds, Inc. v. Plunkett, 89 Ark. App. 16, 199 S.W.3d 700 (2004); Statco Wireless, LLC v. Southwestern Bell Wireless, LLC, 80 Ark. App. 284, 95 S.W.3d 13 (2003).
Arkansas courts have struggled with the concept of whether a covenant not to compete, executed by an employee or agent involved in sales, is too broad. In Borden, Inc. v. Huey, 261 Ark. 313, 547 S.W.2d 760 (1977), and Girard v. Rebsamen Insurance Co., supra, such covenants were held to be a legitimate means of protecting a principal’s interest in preventing a former employee from appropriating its customers. However, a different result was reached in Evans Laboratories, Inc. v. Melder, 262 Ark. 868, 562 S.W.2d 62 (1978); Orkin Exterminating Co. v. Weaver, 257 Ark. 926, 521 S.W.2d 69 (1975); Federated Mut. Ins. Co. v. Bennett, 36 Ark. App. 99, 818 S.W.2d 596 (1991); and Rebsamen Ins. Co. v. Milton, 269 Ark. 737, 600 S.W.2d 441 (Ark. App. 1980).
In Girard v. Rebsamen Insurance Co., supra, we explained that the single most important asset of most businesses is its stock of customers and that protection of that asset is a legitimate interest. We also noted that an employer is especially vulnerable to losing customers when his employee deals with customers away from the business and builds up personal relationships that bind the customers to him. In that case, the restrictive covenant had no geographic limitation and prohibited Girard from soliciting or accepting any insurance business on any account that Girard was servicing when he left Rebsamen. We distinguished Rebsamen Insurance Co. v. Milton, supra, and explained:
Appellant contends the restrictive covenant’s two-year time limit and its silence with respect to geographical area are unreasonable. However, when viewing the covenant against the facts of this case, we find no merit in appellant’s contentions. The chancellor correctly distinguished the non-competition covenant in Rebsamen Insurance v. Milton, supra, from the one in issue here. First, Milton was forbidden to engage in any insurance or other business in which Rebsamen was engaged, whereas, here appellant was prohibited from engaging in the insurance business only. Second, and more importantly, Milton was forbidden to solicit or accept indirectly insurance business from any current customer or account or one who had been a customer at any time within three years of Milton’s termination; while here appellant is prohibited for two years from soliciting or accepting insurance only from customers whose ac counts he serviced at the time of his termination. Undisputedly, appellant’s restrictions concerning his post-termination business activities are much narrower than in Milton.
Under the parties’ agreement, appellant is not forced to go elsewhere to open his agency. Since no geographical restriction is mentioned, he can continue his business in the same city in which he lived while employed with appellee. Appellant is free to solicit and accept business from 95% of the overall insurance market, and, in fact, is free to solicit and accept business from 80% of the customers of appellee’s Springdale office. Appellant’s only restriction involves that portion of appellee’s business that he serviced when he quit appellee.
14 Ark. App. at 159-60, 685 S.W.2d at 529.
Appellants argue that this case is distinguishable from Girard. We disagree. Although it is true that Girard’s covenant was narrower by its being limited to the customers he serviced, neither provision at issue here is nearly as broad as the one in Milton. We believe that BHC clearly had an interest in protecting the confidential information contained within the documents it seeks to protect, especially its customer lists, and that the trial court’s interpretation of the nondisclosure and noncompetition provisions was reasonable.
When Freeman began selling insurance, BHC gave her an existing customer list and “book of business” valued at over $100,000. Because she was licensed to sell all types of insurance, she had access to information about all of BHC’s customers. She had access to all of BHC’s customers’ names, addresses, telephone numbers, insurance policies (including their objectives and renewal dates), as well as similar information about potential customers. Freeman handled at least 165 accounts, which generated over $249,000 in gross revenue, in the twelve months before she resigned. BHC gave her its “Play Book,” which it had developed over many years; Freeman did not return this book. She also had access to an internet-based subscription with Zywave, for which BHC had paid $8500 initially and over $16,000 annually. As a licensee of Zywave, BHC was able to create benefit-plan analyses and marketing plans, including its Standard Benefits Summary/Proposal Format. Konecny is not a licensee of Zywave. Freeman also had access to BHC’s “Written Services Time Line,” a marketing tool that BHC created and provides to its customers as a means of “benchmarking” its performance. To protect the confidentiality of this information, BHC regularly reminded its employees to protect its trade secrets; included a nondisclosure provision in its employee handbook and in the employment agreements; and made its computer system accessible only by password.
On this record, we cannot say that the nondisclosure and noncompetition provisions were broader than necessary to protect BHC’s interests or that the circuit court abused its discretion in granting a preliminary injunction. Thus, we affirm the direct appeal.
Cross-appeal
BHC argues on cross-appeal that the circuit court abused its discretion in not enjoining both appellants under the Arkansas Trade Secrets Act. A trade secret is information, including a formula, pattern, compilation, program, device, method, technique, or process that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by, other persons who can obtain economic value from its disclosure or use and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Ark. Code Ann. § 4-75-601(4) (Repl. 2001). Arkansas courts rely on six factors to determine whether something is a trade secret: (1) the extent to which the information is known outside the business; (2) the extent to which the information is known by employees and others involved in the business; (3) the extent of measures taken by the plaintiff to guard the secrecy of the information; (4) the value of the information to the plaintiff and its competitors; (5) the amount of effort or money expended by the plaintiff in developing the information; and (6) the ease or difficulty with which the information could properly be acquired by others. See City Slickers, Inc. v. Douglas, 73 Ark. App. 64, 40 S.W.3d 805 (2001).
As explained above, BHC implemented several methods to ensure that its information about its customers and their insurance policies remained secret. The extent of measures taken by a company to guard its information is an important factor in determining whether a matter is a trade secret. See Conagra, Inc. v. Tyson Foods, Inc., 342 Ark. 672, 30 S.W.3d 725 (2000). Customer lists obtained through use of a business effort, and the expenditure of time and money that are not readily ascertainable and are kept confidential, are given protection as a trade secret under the common law and the Arkansas Trade Secrets Act. Allen v. Johar, Inc., 308 Ark. 45, 823 S.W.2d 824 (1992).
We agree with BHC that all of its customer information, the Zywave software and the documents produced thereby, its “Play Book,” and its “Written Services Time Line” came within the protection of the Trade Secrets Act. However, to be entitled to injunctive relief, actual or threatened misappropriation must be shown. Ark. Code Ann. § 4-75-604 (Repl. 2001). Misappropriation means:
(A) Acquisition of a trade secret of another person who knows or has reason to know that the trade secret was acquired by improper means; or
(B) Disclosure or use of a trade secret of another without express or implied consent by a person who:
(i) Used improper means to acquire knowledge of the trade secret; or
(ii) At the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was:
(a) Derived from or through a person who had utilized improper means to acquire it;
(b) Acquired it under circumstances giving rise to a duty to maintain secrecy or limit its use; or
(c) Derived from or through a person who owed a duty to the person seeking relief to maintain secrecy or limit its use; or
(iii) Before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.
Ark. Code Ann. § 4-75-601(2) (Repl. 2001). An injunction may issue if there is evidence that an inevitable misappropriation will occur. See Cardinal Freight Carriers, Inc. v. J.B. Hunt Transp. Servs., Inc., 336 Ark. 143, 987 S.W.2d 642 (1999).
BHC introduced evidence that, before Freeman resigned, she accessed, copied, and deleted over 300 computer files; that the documents she accessed included BHC’s customer and prospective customer lists, including each agent’s annual goal and BHC’s president’s personal files (including customer lists and confidential information about a potential acquisition). BHC also showed that Freeman solicited some clients of BHC to move their business to Konecny while she was still employed at BHC and that at least four clients moved or attempted to move their business. BHC also demonstrated that Freeman contacted several of its customers after she left and that many of them had renewal dates within three months. In fact, Freeman gave the City of Lavaca, a BHC customer, a Standard Benefits Summary/Proposal Format and a Written Services Time Line after she left that appeared to be based upon BHC’s documents. In light of Freeman’s actions, we agree with BHC that it would have been appropriate for the preliminary injunction against her to also be based upon the Trade Secrets Act. Even so, this was a matter of discretion for the circuit court, and we are reluctant to say that it abused that discretion. In any event, the relief obtained against Freeman thereby would have been no broader than the preliminary injunction already entered.
We also cannot say that the circuit court abused its discretion in failing to include Konecny within the terms of the injunction. Other than Freeman’s actions, BHC’s evidence did not indicate that Konecny had appropriated BHC’s trade secrets. We recognize, however, that this appeal is interlocutory and point out that, if evidence should develop that Konecny is appropriating BHC’s trade secrets, or that it is attempting to do so, BHC can request additional preliminary injunctive relief.
Affirmed on direct appeal; affirmed on cross-appeal.
Hart and Miller, JJ., agree. | [
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Wendell L.Griffen, Judge.
In this debt-collection case, the Cross County Circuit Court granted MBNA America Bank’s (MBNA) motion for summary judgment and confirmed a $16,670.43 arbitration award against Jason Helton. Helton appeals from the order, contending that there existed a genuine issue of material fact regarding whether he entered an agreement to arbitrate. He further asserts that the circuit court erred in finding that he was barred from raising the failure to agree to arbitrate as a defense. We hold that the circuit court erred in granting summary judgment in light of Helton’s affidavit wherein he stated that he neither agreed to arbitrate the dispute nor participated in its subsequent arbitration. Accordingly, we reverse and remand.
Facts
On May 17, 2004, an arbitrator awarded MBNA $16,670.43 in its dispute with Helton. MBNA filed a petition in circuit court to confirm the award on December 19, 2005. Helton responded by alleging, among other things, that there was no agreement to arbitrate between the parties. MBNA later filed a motion for summary judgment. In its motion, it included a copy of an amendment to the credit-card agreement that purported to bind Helton to arbitration. The relevant language of that amendment states:
As provided in your Credit Card Agreement and under Delaware law, we are amending the Credit Card Agreement to include an Arbitration Section. Please read it carefully because it will affect your right to go to court, including any right you may have to have a jury trial. Instead, you (and we) will have to arbitrate claims. You may choose not to be subject to this Arbitration Section by following the instructions at the end of this notice. This Arbitration Section will become effective on February 1, 2000. This Arbitration Section reads:
Arbitration: Any claim or dispute (“Claim”) by either you or us against the other, or against the employees, agents or assigns of the other, arising from or relating in any way to this Agreement or any prior Agreement or your account (whether under a statute, in contract, tort, or otherwise and whether for money damages, penalties or declaratory or equitable relief), including Claims regarding the applicability of this Arbitration Section or the validity of the entire Agreement or any prior Agreement, shall be resolved by binding arbitration.
The arbitration shall be conducted by the National Arbitration Forum (“NAF”), under the Code ofProcedure in effect at the time the claim is filed. . . . Any arbitration hearing at which you appear will take place within the federal judicial district that includes your billing address at the time the Claim is filed. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (“FAA”). Judgment upon any arbitration award may be entered in any court having jurisdiction. . . .
THE RESULT OF THIS ARBITRATION SECTION IS THAT, EXCEPT AS PROVIDED ABOVE, CLAIMS CANNOT BE LITIGATED IN COURT, INCLUDING SOME CLAIMS THAT COULD HAVE BEEN TRIED BEFORE A JURY, AS CLASS ACTIONS OR AS PRIVATE ATTORNEY GENERAL ACTIONS.
If you do not wish your account to be subject to this Arbitration Section, you must write to us at MBNA America, P. O. Box 15565, Wilmington, DE 19850. Clearly print or type your name and credit card account number and state that you reject this Arbitration Section. You must give notice in writing; it is not sufficient to telephone us. Send this notice only to the address in this paragraph: do not send it with a payment. We must receive your letter at the above address by January 25, 2000 or your rejection of the Arbitration Section will not be effective.
(All emphasis in original.) In response to MBNA’s motion, Helton filed an affidavit stating that he disputed the validity of the debts and that he never signed anything agreeing to arbitrate any claim with MBNA. He specifically alleged, “If any arbitration proceeding actually took place, it did so without my participation and without my agreement or consent.”
The court issued a letter opinion dated March 8, 2007, in which it found that the time for Helton to challenge the arbitration award had passed. In so finding, the circuit court relied on Ark. Code Ann. § 16-108-212(b) (Repl. 2006), which provides a ninety-day time limit for challenging an arbitration award under the Uniform Arbitration Act (UAA). The finding was incorporated into an order dated April 4, 2007, which granted MBNA’s motion for summary judgment and confirmed the arbitration award.
Analysis
The sole issue in this appeal is whether the circuit court properly granted MBNA’s motion for summary judgment. Summary judgment should be granted 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. O’Marra v. Mackool, 361 Ark. 32, 204 S.W.3d 49 (2005); Riverdale Dev. Co. v. Ruffin Bldg. Sys. Inc., 356 Ark. 90, 146 S.W.3d 852 (2004). The burden of sustaining a motion for summary judgment is the responsibility of the moving party. Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Once the moving party has established a prima facie entitlement to summary judgment, the nonmoving party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. This court determines if summary judgment was appropriate based on whether the evidence presented by the moving party in support of its motion leaves a material fact unanswered, viewing the evidence in the light most favorable to the nonmoving party and resolving all doubts and inferences against the moving party. George v. Jefferson Hosp. Ass’n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999); Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998). Review is not limited to the pleadings, but also focuses on the affidavits and other documents filed by the parties. Hisaw v. State Farm Mut. Auto. Ins. Co., 353 Ark. 668, 122 S.W.3d 1 (2003); Brown v. Wyatt, 89 Ark. App. 306, 202 S.W.3d 505 (2005). After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable persons might reach different conclusions from those undisputed facts. Allen v. Allison, 356 Ark. 403, 155 S.W.3d 682 (2004).
As a preliminary matter, the circuit court erred in relying on the UAA to find that Helton was time barred from raising his defense. In Danner v. MBNA America Bank, N.A., 369 Ark. 435, 255 S.W.3d 863 (2007), the Arkansas Supreme Court concluded that the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq. (2000), governed in cases such as this, as the transaction involves interstate commerce. Under the FAA, a party has three months after an arbitration award has been delivered to make a motion to vacate, modify, or correct the award. See 9 U.S.C. § 12 (2000). This is not an issue, however, as MBNA concedes that the FAA governs this matter.
Helton argues that the circuit court erred in granting summary judgment and confirming the arbitration award, as there was a genuine issue of material fact regarding whether he entered into an agreement to arbitrate. He further contends that the circuit court erred in finding that the expiration of the three-month period to challenge an arbitration award barred him from arguing that he had not agreed to arbitrate.
Helton heavily relies on Danner in support of his argument for reversal. As in the instant case, Danner involved a situation where MBNA submitted a claim to arbitration and received an award. It sought to confirm the award in circuit court. However, the cardholder disputed the validity of the debt, denied entering an arbitration agreement, and stated that she never participated in the arbitration. The Danner court, relying on MCI Telecommunications Corp. v. Exalon Industries, Inc., 138 F.3d 426 (1st Cir. 1998), held that the three-month period of time imposed by the FAA is not triggered unless there is a written agreement to arbitrate. Because the cardholder in that case alleged that no such agreement existed, the case was remanded for a determination of whether a written agreement to arbitrate existed between the parties. See also MBNA Am. Bank, N.A. v. Blanks, 100 Ark. App. 8, 262 S.W.3d 218 (2007).
In response, MBNA relies on MBNA America Bank, N.A. v. Gilbert, 100 Ark. App. 221, 266 S.W.3d 229 (2007). There, the cardholder also alleged that he never entered into an arbitration agreement. Unlike in Danner, however, the cardholder participated in arbitration. We stated that Danner was distinguishable in that aspect, held that the arbitration award there was valid due to the cardholder’s failure to challenge it within the statutory period, and ordered the circuit court to confirm the arbitration award.
In arguing that Gilbert is controlling, MBNA relies on paragraph six of the arbitration award, which states, “The Parties have had the opportunity to present all evidence and information to the Arbitrator.” Reliance on this paragraph is flawed for two reasons. First, the paragraph only states that both parties were given the opportunity to present evidence. It does not state that both parties in fact did so. Second, this appeal is before us for review of a summary judgment. In contesting summary judgment, Helton presented an affidavit stating that he did not owe any money, that he did not agree to arbitration of the claim, and that he did not participate in arbitration. This raises an issue of material fact regarding whether Helton (1) agreed to arbitrate and (2) participated in arbitration. Danner controls under the facts of this case.
While the dissenting judges would overrule Gilbert, such action is not necessary or appropriate in this instance. Arkansas courts do not lightly overrule cases and apply a strong presumption in favor of the validity of prior decisions. See, e.g., State v. Singleton, 340 Ark. 710, 13 S.W.3d 584 (2000). As a matter of public policy, it is necessary to uphold prior decisions unless a great injury or injustice would result. Sanders v. County of Sebastian, 324 Ark. 433, 922 S.W.2d 334 (1996). Adherence to precedent promotes stability, predictability, and respect for judicial authority. Id. (citing Hilton v. S.C. Pub. Rys. Comm’n, 502 U.S. 197 (1991)).
The instant case does not present the opportunity to overrule Gilbert, as the issue of whether Helton participated in the arbitration proceedings remains in dispute. Further, Helton does not ask this court to reconsider the validity of the Gilbert holding. Finally, for the reasons previously stated, we can reverse and remand without overruling our precedent.
Because there is a genuine issue regarding whether Helton agreed to arbitrate and whether he participated in arbitration, summary judgment was improper. Accordingly, we reverse the grant of summary judgment and remand for further proceedings.
Reversed and remanded.
Gladwin, J., agrees.
Glover and Vaught, JJ., concur.
Pittman, C.J., and Bird, J., concur in part, dissent in part.
This is the same arbitration agreement that was at issue in the MBNA cases cited in this opinion. | [
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Robert J. Gladwin, Judge.
This is the third time that this case, which involves a construction contract, has been before us; on both previous appeals, we dismissed for lack of an appealable order. Appellant Robert Meyer, d/b/a Meyer Excavators Contractors, challenges the circuit court’s entry of summary judg ment for appellee CDI Contractors, LLC, and the award of attorney’s fees to CDI. We affirm the circuit court’s decision in all respects.
Meyer filed a complaint against CDI in the Pulaski County Circuit Court, alleging that, in September 2001, it entered into a subcontract with CDI to perform earthwork as part of a construction project for the Church at Rock Creek, in which CDI had falsely represented to Meyer that it had a contract; that, in December 2001, CDI attempted to cancel the contract; and that Meyer’s out-of-pocket costs associated with preparing to perform were $496,566 and his lost profits were $114,490. Claiming fraudulent inducement and breach of contract, Meyer requested damages of $636,055 and punitive damages in the amount of $1,300,000. Asking that the contract be rescinded, CDI responded that an unavoidable event had rendered the contract impossible to perform. Meyer filed an amended complaint alleging that his lost profits were $233,094 and requesting punitive damages of $700,000.
In June 2005, CDI moved for summary judgment, asserting that Meyer was barred from bringing his claims because he had entered into the underlying contract in violation of the Arkansas Contractors Licensing Law. CDI alleged that the church had asked it to obtain a bid from Meyer to perform a portion of the site work; that, when it contacted him about the bid, it learned that he was not a licensed contractor and was, therefore, disqualified from bidding on or entering into a contract for work in excess of $20,000; that it postponed the bidding process in order to allow him time to apply for his license, which he received in July 2001; that, as part of his application for a license, Meyer signed an affidavit, swearing that he was not currently performing any work costing $20,000 or more and did not have an outstanding bid for such work; and that this statement was not accurate, as he was working on a large project, the “Berry Farm Project,” costing over $20,000. Among the supporting exhibits, CDI attached copies of Meyer’s July 2001 license application; excerpts of his 2003 and 2005 depositions; copies of his 2001 invoices for the “Berry Farm Project”; and an itemization of payments he received from June through August 2001. Citing Meyer’s deposition testimony, CDI asserted that, in July 2001, when Meyer applied for his license, he had billed over $84,700; had performed over $70,000 worth of work; and had collected over $90,800 for previous work on the Berry Farm Project. CDI argued that, because Meyer entered into this contract while holding a license that he had obtained by submitting false information, all of his claims were unenforceable under Arkansas Code Annotated section 17-25-103(d) (Repl. 2001), which stated: “No action may be brought either at law or in equity to enforce any provision of any contract entered into in violation of this chapter. No action may be brought either at law or in equity for quantum meruit by any contractor in violation of this chapter.”
Appellant responded: “[Meyer] has controverted the facts alleged by [CDI] as detailed in [Meyer’s] Brief in Support of this Response. [Meyer] incorporates by reference his Brief in Support of his Response.” Meyer’s brief, however, is not contained within the addendum, nor is it in the record. From CDI’s reply brief, it appears that Meyer did submit this response in a brief:
In Meyer’s Brief in Response to CDI’s Motion for Summary Judgment, Meyer fails to refute or counter any of the evidence presented by CDI in support ofits motion. Specifically, Meyer does not deny the fact that he was working on a project in excess of $20,000 at the time he applied for his contractor’s license, and he does not deny that he presented false information to the licensing board. As a result, it should be clear there are no genuine issues of fact remaining. Meyer’s claims against CDI are barred as a matter of law under Ark. Code Ann. § 17-25-103 (2005)....
Meyer makes three arguments in his Response Brief: (1) Meyer did not violate the Licensing Act because he did not know he was presenting false information to the board; (2) Meyer must not have violated the Licensing Act because his license was not revoked; (3) the statute of limitations applying to proceedings brought by the Licensing Board should apply to CDI’s affirmative defense in this lawsuit.
CDI argued that this case could not be distinguished from Williams v. Joyner-Cranford-Burke Construction Co., 285 Ark. 134, 685 S.W.2d 503 (1985), in which the supreme court held that the $20,000 amount provided in the licensing statute applies to the total amount of a project, not just its subparts.
On July 26, 2005, the circuit court entered an order granting CDI’s motion for summary judgment, stating:
Here, [appellant] entered into a contract with CDI Contractors, LLC in violation of the Arkansas Contractors Licensing Act. Specifically, he presented false evidence to the Licensing Board by affirming in an affidavit that, at the time he applied for his license, he was not working on any project the cost of which exceeded $20,000. This was false. The undisputed evidence has shown that [appellant] was in the midst of a multi-million dollar project, called “The Berry Farm Project,” at the time he applied for his license, earning hundreds of thousands of dollars in the month in which he applied for his license alone. In sum, [appellant] presented false evidence to the Licensing Board in order to obtain his contractors license, used such license to enter into a contract with CDI, then sued to enforce the very contract he entered into in violation of the Licensing Statute. Strictly construing Ark. Code Ann. § 17-25-101 et seq., the Court finds that [appellant’s] claims against CDI are statutorily barred and must be dismissed.
Applying Williams to the facts at hand, the Court finds that the cost of the Berry Farm Project, on which [appellant] was working when he applied for his contractors license, far exceeded $20,000. Therefore, he presented false evidence to the Licensing Board when he affirmed that he was not working on any project in excess of $20,000. Because [appellant] entered into the contract with CDI in violation of the Arkansas Contractors Licensing Act, his claims are statutorily barred and are hereby dismissed.
CDI moved for an award of attorney’s fees under Arkansas Code Annotated section 16-22-308 (Repl. 1999), which permits the circuit court to award fees to the prevailing party in any civil action to recover on a contract, and attached the affidavit of its counsel, James C. Baker, Jr., and copies of his time records. Meyer responded that this case did not warrant an award of attorney’s fees because it sounded primarily in tort and, in any event, the requested fee was not properly documented. He also argued that the request was not reasonable and should be limited to $23,309, because CDI had known the relevant facts about his contractor’s license for over three years. Finding that this case sounded primarily in contract, the circuit court entered an order granting $40,000 in attorney’s fees to CDI. After the two appeals that were dismissed because of procedural problems, the circuit court issued a final order on November 5, 2007. The merits of this appeal are now ripe for decision.
Summary judgment should be granted only when it is clear that there are no genuine issues of material fact, and the party is entitled to judgment as a matter of law. Smith v. Farm Bureau Mut. Ins. Co. of Ark., Inc., 88 Ark. App. 22, 194 S.W.3d 212 (2004). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On review, we must determine whether there are any genuine issues of material fact. Id. In our review, we consider whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. All proof is viewed in the light most favorable to the party resisting the motion, with all doubts and inferences resolved against the moving party. Id.
In his first point, Meyer asserts that the circuit court erred in granting summary judgment on his fraudulent-inducement claim, because the contractor’s licensing statutes, even if violated, do not expressly bar a contractor from suing for fraud, even though the allegedly fraudulent actions may arise from circumstances surrounding an unenforceable contract. Arkansas Code Annotated section 17-25-103(d), which is punitive in nature, must be strictly construed and, if a provision is not clear and positive, every doubt as to its construction must be resolved in favor of the one against whom the enactment is sought to be applied. Meadow Lake Farms, Inc. v. Cooper, 360 Ark. 164, 200 S.W.3d 399 (2004); Wilcox v. Safley, 298 Ark. 159, 162-A, 766 S.W.2d 12, 771 S.W.2d 741 (1989) (supplemental opinion denying rehearing). In Sisson v. Ragland, 294 Ark. 629, 745 S.W.2d 620 (1988), the supreme court held that a party could pursue a claim for quantum meruit even if the statute prevented enforcement of the contract. In 1989, the General Assembly amended the statute to expressly bar claims for quantum meruit. Meyer asserts that, because the statute does not specifically prohibit claims for fraudulent inducement, a strict construction of it requires us to hold that such claims may be pursued. CDI urges us to hold that the statute bars all actions, however they are characterized, that essentially seek compensation for contract work done in violation of the statute. In this appeal, we need not decide whether all fraud claims are barred by the statute but have no hesitation in holding that, under the facts of this case, Meyer’s fraudulent-inducement claim is barred.
As Meyer points out in his brief, some states have permitted such claims to go forward. See Trees v. Kersey, 56 P.3d 765 (Idaho 2002). Others have held that such a statute will also bar fraud claims. In White v. Miller, 718 So. 2d 88, 90 (Ala. Civ. App. 1998), the court explained:
The amount of damages claimed by the contractor in his amended counterclaim is specifically the same amount claimed in his original counterclaim. In other words, the damages that the contractor seeks for fraud and deceit are measured by the value of the work and labor performed under the contract. Hence, it is logical to conclude in this situation that the contractor’s claims for fraud and deceit are intrinsically founded on, and are intertwined with, the facts surrounding the underlying contract. As such, the contractor cannot prevail. Stated differently, the contractor cannot circumvent the licensing statute by asserting claims for fraud and deceit when the facts surrounding his claims are grounded in contract. Architectural Graphics & Constr. Servs., Inc. [v. Pitman, 417 So. 2d 574 (Ala. 1982)].
Meyer cites Pickens v. American Mortgage Exchange, 74 Cal. Rptr. 788 (Cal. Ct. App. 1969), and Brunzell Construction Co. v. Barton Development Co., 49 Cal. Rptr. 667 (Cal. Dist. Ct. App. 1966), as supporting his position. Those decisions, however, were limited to their facts and distinguished in Hydrotech Systems, Ltd. v. Oasis Waterpark, 803 P.2d 370 (Cal. 1991), where the California Supreme Court stated:
In a garden-variety dispute over money owed an unlicensed contractor, the contractor cannot evade section 7031 by alleging that the express or implied promise to pay for his work was fraudulent. However artful the pleadings, if the primary fraud alleged is a false promise to pay for unlicensed construction work, and the primary relief sought is compensation for the work, section 7031 bars the action.
803 P.2d at 379. We believe that the same reasoning applies to this case.
Here, regardless of how Meyer has framed his pleadings, his claim for fraud is intrinsically founded on, and intertwined with, the facts surrounding the underlying contract, and the primary relief he seeks — his lost profits — is the benefit of his bargain. Given these facts, we hold that his fraudulent-inducement claim was barred by Arkansas Code Annotated section 17-25-103(d).
Meyer argues in his second point that a genuine issue of material fact exists as to whether the Berry Farm was property “for lease, rent, resale, public access, or similar purpose” as provided in Arkansas Code Annotated section 17-25-101(a)(l) (Repl. 2001), and therefore, CDI failed to establish that he was a “contractor” subject to the Act. Meyer, however, did not make this argument to the trial court. We need not consider arguments raised for the first time on appeal. Baptist Health v. Murphy, 365 Ark. 115, 226 S.W.3d 800 (2006).
Meyer adds that he did not intend to give false information in applying for his contractor’s license and that whether he did was a jury question preventing the entry of summary judgment. We disagree. Arkansas Code Annotated section 17-25-103 does not require that the applicant intend to give false information in order to be subject to its terms.
In his third point, Meyer contends that the circuit court abused its discretion in awarding any attorney’s fees to CDI. Alternatively, he argues that $40,000 (of the $79,000 CDI requested for over 600 hours of work) was too much to award because CDI prevailed without going to trial. Meyer points out that, although this case was filed in 2002, CDI did not file this motion for summary judgment until 2005, even though it had notice of his potential licensing problems after his first deposition was taken in March 2003.
The general rule in Arkansas is that attorney’s fees are not awarded unless expressly provided for by statute or rule. Millwood-RAB Mktg., Inc. v. Blackburn, 95 Ark. App. 253, 236 S.W.3d 551 (2006). Arkansas Code Annotated section 16-22-308 (Repl. 1999) provides for a reasonable attorney’s fee to the prevailing party in certain civil actions, including actions for breach of contract. A trial judge is not required to award attorney’s fees. Taylor v. George, 92 Ark. App. 264, 212 S.W.3d 17 (2005). Because of the trial judge’s intimate acquaintance with the trial proceedings and the quality of service rendered by the prevailing party’s counsel, we usually recognize the superior perspective of the trial judge in determining whether to award attorney’s fees. Chrisco v. Sun Indus., 304 Ark. 227, 800 S.W.2d 717 (1990). The decision to award attorney’s fees and the amount to award are discretionary determinations that will be reversed only if the appellant can demonstrate that the trial court abused its discretion. Nelson v. River Valley Bank & Trust, 334 Ark. 172, 971 S.W.2d 777 (1998).
There is no fixed formula in determining what is reasonable, but a trial court should be guided by the following long recognized factors:
(1) the experience and ability of counsel; (2) the time and labor required to perform the legal service properly; (3) the amount involved in the case and the results obtained; (4) the novelty and difficulty of the issues involved; (5) the fee customarily charged in the locality for similar services; (6) whether the fee is fixed or contingent; (7) the time limitations imposed upon the client in the circumstances; and (8) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
South Beach Bev. Co. v. Harris Brands, Inc., 355 Ark. 347, 356, 138 S.W.3d 102, 108 (2003).
Meyer’s argument for reversal of the fee award is not persuasive. It was in his March 2005 deposition that the full extent of his work as a contractor was revealed. Given the amount of discovery that was necessary before CDI had the documentation to verify and demonstrate that Meyer gave false information to the licensing board, the large amount of damages sought by Meyer, and the completely successful result obtained by CDI, we cannot say that the circuit court abused its discretion in awarding fees of $40,000 to CDI.
Affirmed.
Hart and Marshall, JJ., agree.
Although a substantial amount of the evidence supporting CDPs motion for summary judgment came from Meyer’s depositions, Meyer did not abstract them, as required by Arkansas Supreme Court Rule 4-2(a)(5) but did include them in the addendum. We have not directed Meyer to cure the deficiency only because we were able to reach the merits o£ the case in spite of his inadequate abstract. See Ark. Sup. Ct. R. 4-2(b). Moreover, we can go to the record to affirm. Murphy v. Forsgren, Inc., 99 Ark. App. 223, 258 S.W.3d 794 (2007).
Meyer has not appealed from the circuit court’s ruling that this case sounded primarily in contract. | [
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Sam Bird, Judge.
Appellant Anne Throneberry was charged dge. murder and kidnapping in the death of her husband, and with hindering apprehension of her two codefendants. She was tried by a jury and was convicted of manslaughter, kidnapping, and hindering apprehension. She does not challenge the convictions on appeal. She contends only that the trial court abused its discretion by overriding the jury’s recommendation that her sentences run concurrently and by running them consecutively instead. We agree, and we reverse and remand for resentencing.
“Multiple sentences of imprisonment imposed on a defendant convicted of more than one offense . . . shall run concurrently unless, upon recommendation of the jury or the court’s own motion, the court orders the sentences to run consecutively.” Ark. Code Ann. § 5-4-403 (a) (Repl. 2006). The court is not bound by the jury’s sentencing recommendation, and it is not required to explain its reason for running sentences consecutively. Ark. Code Ann. § 5-4-403 (d); Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). The question of whether to impose consecutive or concurrent sentences lies solely within the province of the trial court, and the appellant assumes a heavy burden of demonstrating that the judge failed to give due consideration to the exercise of discretion in the matter of consecutive sentences. Pyle, 340 Ark. at 61, 8 S.W.3d at 496.
We find guidance applicable to the parameters of a trial court’s discretion in U.S. v. Haack, 403 F.3d 997 (8th Cir. 2005). The Haack court, applying the abuse-of-discretion standard, cited Kern v. TXO Production Corp., 738 F.2d 968, (8th Cir. 1984), which explained the standard as follows:
[Wjhen we say that a decision is discretionary,. .. we do not mean that the district court may do whatever pleases it. The phrase means instead that the court has a range of choice, and that its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law. An abuse of discretion, on the other hand, can occur in three principal ways: when a relevant factor that should have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; and when all proper factors, and no improper ones, are considered, but the court, in weighing those factors, commits a clear error of judgment.
738 F.2d at 970.
Over Throneberry’s objection and after the jury’s pronouncement of guilt, the judge presented a verdict form to the jury seeking its recommendation as to whether any sentences should be served consecutively. The jury then recommended nonconsecutive sentences of three years’ imprisonment for manslaughter, ten years for kidnapping, and fifteen years for hindering apprehension. The judge accepted the recommended terms of imprisonment but ran the sentences consecutively on the stated basis that the court had “benefit of. . . information that the jury did not have” from having presided over the cases of Throneber-ry’s codefendants.
The following colloquy ensued between Throneberry’s counsel, Mr. Shaw; the trial court; and the prosecutor, Mr. Foster, when Shaw asked the court to set forth the specific finding of its reasons for not following the jury’s recommendation:
The Court: I will state again what I did before. I have had the benefit of Mr. Holsombach’s full trial, I have had the benefit of listening to the testimony that was presented or the plea that was presented in William Frazier’s trial and the testimony that was presented in this trial. That is the basis of my decision.
Mr. Shaw: I would submit to the Court that it is improper to consider things in this trial that were not part of this trial. Had this been tried to a different court, different judge, which it could have been since it was severed, those factors would not have come into play and I think the Court should reconsider its decision to run these consecutively and I’m asking the Court to reconsider that and follow the jury’s recommendation. I realize it is within the Court’s province to decide ... consecutive. I believe concurrent is what the jury recommended and absent a showing of some type based on what was heard here, I think the Court should be bound by those recommendations or at least follow them.
The Court: Your motion is denied.
Mr. Shaw: Thank you.
Mr. Foster: Your Honor, please the Court, it is my opinion and my position that the Court can take judi cial notice of all fact and information that is before him and the Court does have the benefit of the other two trials which were tried in front of Your Honor in this same courtroom.
Throneberry argues on appeal, as she did below, that the trial court abused its discretion by overruling the jury’s recommendation for concurrent sentencing based upon unspecified information from one codefendant’s trial and the other’s guilty plea. She acknowledges that Ark. Code Ann. § 16-97-103 allows at the sentencing phase the admission of certain evidence relevant to sentencing even if it might not be admissible at the guilt phase, but she notes that the evidence that the trial court relied upon here was not introduced at the sentencing phase. She directs our attention to decisions of our supreme court in such cases as Buckley v. State, 341 Ark. 864, 20 S.W.3d 331 (2000); Love v. State, 324 Ark. 526, 922 S.W.2d 701(1996); and Smallwood v. State, 326 Ark. 813, 935 S.W.2d 530 (1996).
In Love, the trial court sentenced the appellant to consecutive sentences despite the jury’s recommendation for concurrent sentences. Love contended, in part, that the court abused its discretion by considering matters that were immaterial to his case. He asserted that the trial court had presided over the trial of his accomplice, whose acquittal was “not well received” by the trial court, and that the trial court unduly focused the effects of the community’s crime problems upon Love. When he objected that he had been convicted of only two of the crimes, the trial judge stated that those crimes were “sufficient ... to make him responsible for his part” and “that he was not sentencing Love for something that he was not tried and convicted of.” The supreme court found no abuse of discretion.
In Smallwood, the supreme court held that the appellant had not met his heavy burden of “showing that the trial judge failed to give due consideration in the exercise of his discretion” in imposing consecutive sentences. The supreme court wrote:
Smallwood made no argument in his request for concurrent sentences and raises no argument on appeal. Smallwood contends only that there is no way to evaluate the trial judge’s decision, and therefore his proper use of discretion, because he did not explain his decision orally or in writing. Since this is a matter within his discretion we will not presume he did not exercise that discretion unless there is some indication otherwise.
326 Ark. at 820-21, 935 S.W.2d at 533 (citing Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981)).
Drawing an analogy to Buckley v. State, Throneberry asserts the circuit court relied on evidence that had not been introduced against her at trial and which she had no opportunity to rebut or confront. In Buckley, the appellant was convicted of two counts of delivery of a controlled substance and was sentenced to two consecutive life terms by a jury. The appellant contended on appeal that the trial court erred in admitting hearsay testimony at the sentencing stage of trial, over his objection, about alleged prior drug-related activity for which he had never been charged, tried, or convicted. The supreme court agreed that the statements were hearsay and, because the jury had used the testimony to impose a punishment of two life sentences, reversed for new sentencing.
The State argues that the present case and Buckley are readily distinguishable because the present issue is the judge’s discretion to run sentences consecutively, rather than the jury’s recommendation for the length of sentences as in Buckley. The State differentiates the present case from Walls v. State, 336 Ark. 490, 986 S.W.2d 397 (1999), where the trial court abused its discretion at a sex offender’s sentencing hearing by allowing testimony about murders committed by one of the victims and by holding the sex offender responsible for those crimes in fixing his sentence. Cf. Marshall v. State, 342 Ark. 172, 175, 27 S.W.3d 392, 394 (2000) (refusing to extend Walls, supra, to prohibit the admission of evidence of aggravating circumstances relating to the appellant’s status as a fugitive from a pending indictment in another state). The State asserts that a trial judge, just as jurors, should not be expected to live in a vacuum, e.g., Starr v. State, 297 Ark. 26, 759 S.W.2d 535 (1988), and that a defendant is not entitled to a judge who is totally ignorant of the facts surrounding a case, just as the defendant is not entitled to jurors totally ignorant of the facts surrounding a case, e.g., Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997). The State concludes that the discretionary decision of the trial judge concerning consecutive sentences did not require the admission of additional evidence and that he was not required to ignore his extensive knowledge of the crimes, gleaned from what he had learned while presiding over the proceedings in the three codefendants’ cases.
We agree with Throneberry that the trial judge’s consideration of evidence that was never introduced against her was improper. Our supreme court has clearly stated that judicial notice may not be taken of the record in a separate case. Smith v. State, 307 Ark. 223, 818 S.W.2d 945 (1991); Leach v. State, 303 Ark. 309, 796 S.W.2d 837 (1990); see also Baxter v. State, 324 Ark. 440, 922 S.W.2d 682 (1996) (holding that a codefendant’s sentence is not relevant to an appellant’s guilt, innocence, or punishment); John Wesley Hall, Jr., Trial Handbook for Arkansas Lawyers $ 16.11 (2006) (stating that, unless the proceedings are put into evidence, courts will not travel outside a record in order to notice proceedings in another case, even between the same parties in the same court). Therefore, the record of a codefendant’s case cannot be considered at the sentencing phase of a defendant’s separate trial if the codefendant’s record has not been introduced into evidence.
The records of Throneberry’s codefendants were improper factors for consideration at Throneberry’s sentencing, and the trial judge’s judicial notice of those records, which was the basis of his decision to run the sentences consecutively, constituted an abuse of his discretion to sentence Throneberry to consecutive or concurrent sentences. We reverse and remand for a re-sentencing hearing without consideration of these factors.
Throneberry also argues that a scrivener’s error occurred in the judgment order for the manslaughter conviction, which reflects a sixty-month sentence of imprisonment rather than the three-year sentence assessed by the jury and pronounced by the trial court. She makes no showing, however, that this issue was raised to the trial court, and we therefore will not address it on appeal. Fisher v. State, 84 Ark. App. 318, 139 S.W.3d 815 (2004). This issue will remain open on remand for the circuit court to address in the first instance.
Reversed and remanded.
Hart and Marshall, JJ., agree.
The issue before the Eighth Circuit was whether the district court, in departing from federal sentencing guidelines, abused its discretion to an unreasonable extent.
Codefendant Mark Holsombach’s convictions for capital murder, attempted capital murder, and kidnapping were affirmed by the supreme court in Holsombach v. State, 368 Ark. 415, 246 S.W.3d 871 (2007). His conviction for being a felon in possession of firearms was reversed on a speedy-trial violation in this court’s unpublished opinion Holsombach v. State, CACR 07-304 (Ark. Ct. App. Dec. 5, 2007). Codefendant Mark Frazier pleaded guilty to crimes that are not specified in the record. | [
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D.P. Marshall Jr., Judge.
The parties dispute who owns some real property — RWR Properties, Inc., claiming it through a tax deed from the Commissioner of State Lands and Mid-State Trust VIII claiming it through a Commissioner’s deed from a foreclosure sale. RWR and Mid-State agreed on the material facts. And on those facts, the circuit court entered summary judgment for Mid-State and voided RWR’s tax deed. RWR asks us to reverse this judgment, arguing that (for various reasons) Mid-State may not get the benefit of the legal ground on which the circuit court ruled: the undisputed lack of notice by the Commissioner of State Lands to a prior mortgagee that the land was about to be sold to pay the delinquent taxes and could be redeemed. We review de novo. Craven v. Fulton Sanitation Servs., Inc., 361 Ark. 390, 391-92, 206 S.W.3d 842, 843 (2005).
The record presents a thicket of transactions, which we summarize to focus the legal issues. Mr. and Mrs. George Thomas borrowed money to buy a home and two lots in Jefferson County. They gave a mortgage on the realty to Jim Walter Homes, Inc. to secure their note. Their mortgage was assigned many times. The Thomases did not pay their real estate taxes on lot 2. In October 2002, that lot was certified to the Commissioner of State Lands pursuant to Ark. Code Ann. § 26-37-101 (Repl. 1997) as tax-delinquent land. At that time, First Union National Bank, Trustee, was the mortgage holder of record.
The Thomases later failed to pay their note on the property. When the Thomases defaulted, Mid-State Trust VIII and Walter Mortgage Company owned the mortgage. They began foreclosure proceedings. Walter Mortgage bought the home and lots at the foreclosure sale for approximately $64,000.00, received a Commissioner’s deed, and later sold the property. Walter Mortgage took a mortgage from the buyer, and after having been assigned several times, that mortgage is now held by the appellee Mid-State.
Almost a year after the foreclosure proceedings ended, the Commissioner of State Lands sold lot 2 to RWR for about $6,000.00, which covered the back taxes, penalties, interest, and fees. Pursuant to Ark. Code Ann. § 26-37-301 (Repl. 1997), the Commissioner gave notice of the sale and the right to redeem to Mr. and Mrs. Thomas, who had owned the property when it was certified as tax delinquent. The governing statute also made First Union an interested party entitled to notice because First Union had held a recorded interest in the property at the time of certification. Ark. Code Ann. §§ 26-37-301 (a)(1) & (2) and (c). The Commissioner, however, did not notify First Union.
The circuit court ruled correctly on the agreed, essential facts. The Commissioner of State Lands must comply strictly with the statute’s notice requirements. Sanders v. Ryles, 318 Ark. 418, 423, 885 S.W.2d 888, 891 (1994). Beyond the statute, the Due Process Clause protects a mortgagee’s right to notice of a tax sale so that the mortgagee has the opportunity to protect its interest in the real property. Mennonite Board of Missions v. Adams, 462 U.S. 791, 798-800 (1983). Flere, the Commissioner acknowledged and the parties agreed that First Union received no notice of the sale. The circuit court therefore correctly voided the Commissioner’s limited warranty deed to RWR.
RWR argues that, for several independent reasons, the foreclosure in Mid-State’s chain of title requires reversal. We are not persuaded by any of RWR’s points. Contrary to RWR’s initial argument, First Union was not a necessary party under Rule of Civil Procedure 19. As the mortgage holder at the time of certification, First Union had the right to notice of the tax sale but that right was not personal. The statute makes the right a function of the interest in realty; and we hold that the right passed — along with all First Union’s other rights in lot 2 — to its assignee when First Union assigned the mortgage and then passed to the successor assignees. Price v. Williams, 179 Ark. 12, 16-18, 13 S.W.2d 822, 823-24 (1929).
This brings us to RWR’s second argument, which is the core of its position. RWR argues that Mid-State lacks standing to pursue the no-notice argument because Mid-State holds title through the foreclosure and resulting deed. RWR says that this must be so for “the original mortgage and any claim arising from it were terminated by the foreclosure proceeding.” On this theory, the deed resulting from the foreclosure began a new and independent chain of title.
RWR’s argument, however, misunderstands what happens when the circuit court forecloses a mortgage and sells real estate to pay the related debt. The foreclosure and sale do not create a new chain of title that has no connection whatsoever with prior interests in the property. Instead, the buyer receives what the court has to sell. Walter Mortgage thus bought the Thomases’ interest and the foreclosing mortgagees’ interest. The original mortgage was indeed foreclosed, but that foreclosure did not destroy First Union’s right to notice of the tax sale. That right passed — along with all the rights of the Thomases and the foreclosing mortgagees — to the buyer at the judicial sale, Mid-State’s predecessor in title.
In the words of an older case, the governing legal principle is that “the purchaser at a mortgage foreclosure sale steps into the shoes of the mortgagee in the mortgage foreclosed, and is entitled to all the rights such mortgagee had under the mortgage.” Robb v. Hoffman, 178 Ark. 1172, 1176, 14 S.W.2d 222, 224 (1929). The principle governs whether, as in Robb, it subjects the purchaser’s interest to a prior mortgage or, as in this case, it vests in the purchaser a right of a predecessor mortgagee to notice before a tax sale. In the phraseology of RWR’s argument, Mid-State had standing to assert the right of its predecessor in title, First Union, to notice of the tax sale.
As Mid-State notes, its challenge to RWR’s tax deed was essentially a suit to redeem. McAllister v. Wright, 197 Ark. 1156, 1160, 127 S.W.2d 645, 648 (1939). Either the current owner, a Ms. Flicks, or the current mortgagee, Mid-State, had a sufficient interest in lot 2 to pursue redemption. Woodward v. Campbell, 39 Ark. 580, 584 (1882). And the right to challenge the tax sale based on the Commissioner of State Lands’s failure to give notice to First Union passed to Hicks and Mid-State when they acquired their interest in the property through the buyer at the foreclosure sale.
RWR argues, finally, that Mid-State is collaterally estopped to assert the no-notice claims. Citing the general law about issue preclusion, RWR points out that the Commissioner of State Lands was not a party to the foreclosure action, says that ownership was litigated there and the notice issue could have been litigated but was not, and concludes that Mid-State is barred from asserting the notice issue now. This argument confuses claim preclusion and issue preclusion; the former bars relitigation of issues that could have been raised but were not, while the latter bars issues actually raised and decided. E.g., John Cheeseman Trucking, Inc. v. Pinson, 313 Ark. 632, 635-36, 855 S.W.2d 941, 943 (1993). The elements of collateral estoppel are simply not present in this record. The stated premise of RWR’s preclusion argument is that the notice issue was not litigated in the foreclosure. That premise means that there can be no collateral estoppel on that issue in this case.
Affirmed.
Heffley and Baker, JJ., agree. | [
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Karen R. Baker, Judge.
This appeal arises from a petition to clarify a will filed by First State Bank in which it asked the court to clarify several issues, including whether the references in the will of Opal Gefon to “savings and checking account” and “remainder of my savings and checking” included the cash located in the decedent’s safety deposit box. Appellants, heirs of the decedent Opal Gefon, assert only one point of error on appeal: The trial court was clearly erroneous in finding that appellee Lost Cherokee of Arkansas and Missouri, Inc., was entitled to the $226,000 in cash located in the decedent’s safety deposit box at the time of her death. We find no error and affirm.
The decedent, Opal Gefon, died on November 9, 2005. On November 21, 2005, Arthur Gruner filed a petition to probate a typewritten will properly witnessed and executed on the date of May 6, 2005. This instrument designated Mr. Gruner as the executor of Ms. Gefon’s will. On December 12, 2005, Darlene Johnson, a great-niece of Ms. Gefon, filed a contest of the May 6 instrument claiming that there had been a holographic will executed after the typewritten will had been executed and that she possessed a note revoking the May 6 will. This holographic instrument was dated October 19, 2005. Ms. Johnson also filed a petition to probate this holographic will. On March 6, 2006, the court admitted the October 19, 2005 holographic will; however, this document nominated the Governor of Michigan to serve as executor. The trial court noted that the Governor declined to serve, and the court substituted First Security Bank as the executor of Ms. Gefon’s estate. On October 6, 2006, First Security Bank filed the petition to clarify the will. On January 7, 2007, a hearing was held and on March 23, 2007, the order appealed from was entered. A notice of appeal was timely filed.
In presenting its petition to the court, the Bank acknowledged two provisions in need of clarification. One provision used the words “savings and checking account” in the First Team Bank in Heber Springs to the Lost Cherokee of Arkansas and Missouri, Inc.; and another, on page four of the Will, referred to “the remainder of my savings and checking to the Native American Indians.” In its petition, the Bank also noted that the decedent owned the following intangible personal property at the time of her death: (1) First Arkansas Bank and Trust (checking) - $4022.70; (2) First Arkansas Bank and Trust (savings) - $201,023.63; (3) Cash from Safety Deposit Box at First Arkansas Bank and Trust - $226,000.
Following a hearing, the court entered a March 23, 2007 order in which it found that the decedent intended that the $226,000 in cash located in her safety deposit box at the time ofher death was part ofher “savings” so that the references to “savings and checking account” and “remainder of my savings and checking” in the will included the $226,000 in cash. The court further found that the phrase “remainder of my savings and checking” was a residual clause with respect to those funds, and that after any specific bequests were made, the remaining amounts were to be distributed to the Lost Cherokee of Arkansas and Missouri, Inc.
In finding that the testator intended for the term “Native American Indians” to refer to the Lost Cherokee of Arkansas and Missouri, Inc., the trial court noted that nowhere in decedent’s will was there any mention of any other American Indians and that the term “Native American Indians” in the last page of the decedent’s will referred back to the earlier-used term “Lost Cherokee of Arkansas and Missouri, Inc.”; accordingly, the Court found that the Lost Cherokee of Arkansas and Missouri, Inc., was the intended beneficiary of the remainder of the decedent’s savings and checking, as well as the intended beneficiary of the property the decedent described. The trial court further found that the phrase “remainders of my savings and checking” was a residual clause referring to and including the funds in the deposit box and the accounts. Furthermore, that after payment of specific bequests were made, the remaining amounts were intended to go to the Lost Cherokee of Arkansas and Missouri, Inc.
Probate proceedings are reviewed de novo on the record, but the decision of the circuit court will not be reversed unless it is clearly erroneous. See Bullock v. Barnes, 366 Ark. 444, 236 S.W.3d 498 (2006); Craig v. Carrigo, 353 Ark. 761, 121 S.W.3d 154 (2003). In conducting our review, we give due regard to the opportunity and superior position of the trial judge to determine the credibility of the witnesses. Bullock, supra. When interpreting wills, the paramount principle we follow is that the intent of the testator governs. See Cleaves v. Parker, 93 Ark. App. 150, 217 S.W.3d 136 (2005). The testator’s intent is to be gathered from the four corners of the instrument itself. Id. However, extrinsic evidence may be received on the issue of the testator’s intent if the terms of the will are ambiguous. Id. An ambiguity has been defined as an indistinctness or uncertainty of meaning of an expression in a written instrument. Id. The apparent meaning of particular words, phrases, or provisions in a will should be harmonized, if possible, to such scheme, plan, or dominant purpose that appears to have been the intention of the testator. Id.
Given our standard of review, we find no error in the trial court’s interpretation of the will’s directives and finding as to the testator’s intent. Accordingly, we affirm.
Glover, Vaught, and Miller, JJ., agree.
Pittman, C.J., and Griffen, J., dissent.
While the dissent insists that the trial court’s determination that the testator’s reference to “savings” must be modifying a type of account held at the bank, we find nothing inconsistent with the judge’s determination that the testator intended for “savings” to encompass more than the reference to “account” in her use of “checking account” in the construction of the will.
No evidence suggests that the testator was relying on our legislature’s statutory definitions of account as defined in our banking code when selecting the language she used in disposing of her property. | [
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Karen R. Baker, Judge.
Appellant, Heather Lynne Harrison, appeals from a decision by the Crittenden County Circuit Court finding that appellant failed to meet her burden of proof in establishing that there has been a material change of circumstances to warrant a change in custody. On appeal, she argues that the trial court erred in not finding that it was in the best interest of the minor child to change custody to appellant. We agree and reverse and remand.
The parties were divorced by decree entered February 23, 2004. The parties had one daughter, O.H., born January 22, 2001. Custody of the three-year-old child was awarded to appellee based on the fact that appellant had been involved in a sexual relationship with a man during the pendency of the divorce. In a letter opinion of December 2003, the trial court stated, “An obligation of parenthood is to instruct on morals, mores, traditions, and customs. Setting a poor example in a parent’s own life is failure to properly instruct.”
On July 14, 2005, appellant filed a petition for change of custody alleging that a material change in circumstances had occurred since the original custody determination. Specifically, appellant alleged that appellee was also involved in a relationship with a live-in girlfriend during the parties’ pending divorce. This fact was not known to the trial court at the time of the divorce. Appellant also filed a petition for contempt alleging that appellee failed to allow appellant her weekday visitation. In response, appellee filed a counter-petition for modification of the divorce decree asserting that because the needs of the minor child had increased with age and the disposable income of the appellant had increased, a material change in circumstances had occurred since child support was originally set, and child support should be increased to $106 per week.
A hearing was held on the motions on March 7, 2007. Appellee was the first person to testify. He recalled the trial judge rendering its letter opinion in his divorce case. Specifically, he recalled the court stating that an obligation of parenthood is to instruct on morals, mores, traditions, and customs and stating that setting a poor example in a parent’s own life is failure to properly instruct. Appellee was of the opinion that he had “done a very good job to set an example and properly instruct” his daughter. However, he testified that he dated Peggy Houston for four to six months during his pending divorce. He took great measures to hide the fact that they were dating, such as hiding her car when she came to his house. Peggy was around O.H. on one occasion. Appellee testified that he continued to date Peggy until after the divorce was finalized. At that time, he began dating Wendy. Wendy was introduced to O.H. on two occasions. Wendy also had a daughter that was O.H.’s age, so the two children played together. Appellee then began dating Melody Harrison. While they dated, “O.H. was around Melody a great deal.” During this time Melody became pregnant with his child. She was pregnant when he and Melody finally married on October 23, 2004. He also explained that Melody had another child, born outside of marriage, that was seven years old and that lived in the home with O.H. In response to the question of whether it was a proper example for his daughter to be in a situation where someone that he was dating became pregnant before they were married, appellee answered “yes and no.” He stated, “Yes in the fact that it’s taking responsibility for my actions. And no because the child was conceived out of wedlock.”
Appellee testified that he was employed by the City of West Memphis Fire Department. He explained that he worked ten, eleven, twelve, and sometimes twenty-four hour shifts. While he was at work, a number of family members, particularly his mother and his aunt, picked up his children and took them back and forth to school. He also stated that “with my work schedule I guess you could say that a lot of my parenting has been turned over to Melody. Prior to turning it over to Melody, before I married her, my mother did a large part of it, my mother and my aunt.” He also explained that Melody was in contact with appellant constantly and provided her with updates on school, including homework and school parties. Melody volunteered to be O.H.’s room mother at school, and appellant also was present and helped with school parties. He stated that when he was not working, he sometimes picked the children up at school. When he arrived home from work at seven in the morning, he helped get the children ready for school and if there was breakfast to be fixed, he made it. He testified that “usually [Melody] takes them to school. If she’s running late, then I’ll take them some and my mom takes them some.” When he was able to pick O.H. up from school, he did so.
Appellee testified that he objected to appellant having custody of O.H. because he thought appellant did not spend all of her time with the child and he thought she did not make wise decisions about the child. Specifically, it was important to appellee that O.H. be fed a balanced diet. He felt that appellant did not feed O.H. a properly balanced diet. He based this opinion on one occasion when appellant brought the child to him having had only yogurt for dinner. He then stated, “I don’t have any other reason that [O.H.] should not be in the custody of her mother.”
When questioned as to the reason he was awarded custody of their daughter, he responded, “The situation with me getting custody of [O.H.] arose out of the fact that [appellant] was seeing someone else during the time that we were separated and prior to the divorce. In fact, I did the same thing. I don’t believe I told that at the divorce hearing.” He further testified that, “But, yeah, I would guess you’re correct in saying that I asked the court to take custody away from Heather for the very same thing that I was doing at the time and continued to do afterward.”
Melody Harrison, appellee’s current wife, testified that she was not a high school graduate because she was one credit shy of graduating, but she had not had the time to finish the course and obtain her diploma. She stated that she worked at J and T Flash Monday through Friday. She had two children. She was never married to the father of her first child (a daughter). However, she began seeing Darryn Richards when she was four months pregnant with her daughter. When her daughter was three years old, she and the child moved in with Darryn. She and Darryn eventually married and were married for approximately two years. She and appellee began seeing each other in the spring of 2004, and she soon became pregnant with his child (a son). She testified that she was approximately one month pregnant when she and appellee married.
Melody also testified that she and appellant had a good relationship. She kept appellant informed about O.H.’s school activities and the two of them were both room mothers for O.H.’s classroom. She testified that there was no difference in the way she treated her daughter and O.H. She also testified that O.H. and Melody’s daughter got along very well. The two girls were very compatible and enjoyed being together. She testified that appel-lee’s aunt was very helpful in picking up the children from school when both Melody and appellee were at work. Melody testified that she worked from eight to five.
Appellant testified that she learned that appellee had engaged in sexual relationships during the pendency of their divorce only recently. She testified that she thought it was “very unjust” that she lost custody of O.H. over a relationship that she had while appellee “was doing the same thing.” She testified that she was involved in a relationship during her pending divorce from appellant; however, she did not have overnight visitors of the opposite sex, nor did she ever place O.H. in an improper situation. The man that she dated was only around O.H. on very few occasions, and he was not ever around O.H. in the evening. Ultimately, appellant did not marry the man that she was dating during the pending divorce.
Appellant testified that during the time appellee had custody of O.H., there was not “anything objectionable in my life for that child to be around. I have not dated anyone that would be objectionable for [the] child to be around if I was married to them.” Since the divorce, appellant purchased a home and decorated a room for O.H. She testified that she and O.H. had spent a significant amount of time with appellant’s parents; however, during visits to the grandparents’ house, appellant was always there. Appellant testified that she always participated in O.H.’s activities. She worked at St. Jude’s Children’s Research Hospital from eight to four-thirty Monday through Friday, so she was “just as able as either [appellee or Melody] to get [O.H.] to places that she [needed] to go.”
Appellant testified, “I want the Court to change custody because I believe, as her mother, I would be her best caretaker. If [appellee] is not the primary caretaker, I feel it’s in the best interest of the child to have her real parent, her mother. I am asking the Court to grant custody to me.” Appellant testified that on her nights with O.H., appellant did not leave O.H. with anyone while she attended other activities. Appellant was always with O.H. Appellant’s parents were available to pick O.H. up from school and tend to her until four-thirty when appellant got home from work. She stated, “I only want the best for [O.H.].”
Frances Harrison, appellee’s mother, testified that she helped care for O.H. after appellee was awarded custody of her. Ms. Harrison spent nights at appellee’s house in order to help care for O.H. until he married Melody. She testified that appellee did not have overnight guests of the opposite sex while O.H. was present. She testified that when appellee was working, she and her sister would pick O.H. up from school, and appellee would pick O.H. up from school when he was not working.
At the conclusion of the hearing, the trial court made the following statement:
First of all the Court’s going to comment about the original decision in which the Defendant admitted that he was engaged himself in an adulterous relationship at the time of the divorce and that that information was withheld from the Court. The Court agrees with Plaintiffs contention that that cast the Defendant in a bad light with the Court, the Court feeling that not only is he a cheat, but he’s a nefarious and devious cheat, and the Court recognizes that.
The Court further commented on the fact that appellee’s character was questionable and that, while it did not know that its prior custody determination would have been different had the truth been known, “it well may be that the decision of the Court would have been different.” Nonetheless, the trial court entered an order in which it concluded that appellant failed to meet her burden of proving that there had been a material change in circumstances warranting a change in custody and that it would be in the best interest of the child to remain in the custody of the appellee. The court also found that appellant was entided to make up the day of visitation that she missed on August 16, 2006; that due to the circumstances under which appellant missed her visitation, appellee was not in contempt; that the issues raised in appellee’s counter-petition for modification of child support were resolved by the order; and that each party should bear their respective costs for attorney’s fees. From this order, comes this appeal.
The court of appeals reviews child custody cases de novo, but does not reverse absent a finding that the circuit court’s findings were clearly contrary to the preponderance of the evidence. Carver v. May, 81 Ark. App. 292, 101 S.W.3d 256 (2003). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Id. Especially in child-custody cases, the circuit court receives exceptional deference because of its superior position to evaluate and judge the credibility of the witnesses. Id. It is well settled that the primary concern in child-custody cases is the child’s welfare and best interest; all other considerations are merely secondary. Id.; Eaton v. Dixon, 69 Ark. App. 9, 9 S.W.3d 535 (2000). Before a custody order can be changed, the court must be presented with proof of material facts which were unknown to the court at the time of the initial custody order or proof that conditions have so materially changed as to warrant a custody modification and that the best interest of the child requires it. Carver, supra.
Determining whether there has been a change of circumstances that materially affects the children’s best interest requires a full consideration of the circumstances that existed when the last custody order was entered in comparison to the circumstances at the time the change of custody is considered. Blair v. Blair, 95 Ark. App. 242, 235 S.W.3d 916 (2006). Custody will not be modified unless it is shown that there are changed conditions demonstrating that a modification is in the best interest of the child. Vo v. Vo, 78 Ark. App. 134, 79 S.W.3d 388 (2002).
The circuit court’s findings in this regard will not be reversed unless they are clearly erroneous. See Vo, supra. While custody is always modifiable, appellate courts require a more rigid standard for custody modification than for initial custody determinations in order to promote stability and continuity for the children and to discourage repeated litigation of the same issues. Id. There are no cases in which the superior position, ability, and opportunity of the circuit judge to observe the parties carries a greater weight than those involving the custody of minor children, and our deference to the circuit judge in matters of credibility is correspondingly greater in such cases. Id.
Appellant asserts that the trial court erred in denying her petition to change custody of the parties’ minor daughter to her. In essence, appellant asserts that the trial court erred in failing to find that a material change in circumstances had occurred since the entry of the divorce decree and that it would be in the best interest of the child for appellant to have custody. We agree that appellant proved that a material change in circumstances transpired since the entry of the divorce decree.
In Mason v. Mason, 82 Ark. App. 133, 111 S.W.3d 855 (2003), this court held that in order to avoid relitigation of factual issues already decided, courts will usually restrict evidence in a modification proceeding to facts arising since the prior order; the only other time a change is permissible is when there is a showing of facts affecting the best interests of the children that were either not presented to the trial judge or were not known by the trial judge at the time the original custody order was entered. (Emphasis added.) In the present case, there were material facts that were unknown to the trial court at the time of the divorce and custody proceedings. The fact that appellee sought custody of the parties’ daughter on the basis that appellant was involved in a sexual relationship, while at the same time participating in the same conduct, is undisputed. Appellee admitted during his testimony, “I asked the court to take custody away from Heather for the very same thing that I was doing at the time and continued to do afterward.” He stated, “In fact, I did the same thing. I don’t believe I told that at the divorce hearing.” Furthermore, since the entry of the original custody order, appellee has introduced into the child’s home and entrusted with primary-care responsibilities a woman who conceived two children out-of-wedlock. Based on this evidence, the trial court clearly erred in finding that appellant failed to prove a material change in circumstances had occurred.
Once a material change of circumstances was established, the trial court then had the duty to weigh these material changes and consider the best interest of the child. See Calhoun v. Calhoun, 84 Ark. App. 158, 162, 138 S.W.3d 689, 691-92 (2003) (reversing where the court found that there was a material change in circumstances but then placed an additional burden on appellant of showing an “adverse impact” on the child, without simply weighing the child’s best interest).
We turn now in our de novo review to the evidence concerning the best interest of the child. The Arkansas Supreme Court has stated that “the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary.” Hamilton v. Barrett, 337 Ark. 460, 466, 989 S.W.2d 520, 523 (1999). In this case, the trial court left custody of the child with the appellee because O.H. had been in his .custody for some time and seemed to be doing well. However, the evidence showed that the child had originally been placed with him due in large part to the trial court’s conclusion that he would provide a better moral example than appellant; a conclusion that has now proven to be incorrect. Appellee has engaged in sexual relationships outside of marriage on at least two occasions since being granted custody of O.H. Further, he placed O.H. in the primary care of his new wife, who herself had one illegitimate child from a previous relationship and who was pregnant by appellee at the time of their marriage. Clearly, appellee never had a claim to the moral high road and has demonstrated that he is less able than appellant to provide a good moral example to O.H.
Further, and most importantly, appellee admits that he is not now nor was he ever the primary caretaker of O.H. He admitted that he expected the stepmother, not himself, to be O.H.’s primary caretaker in the future if he should retain custody. The care and nurture of O.H. should be with a parent and so long as the parent is fit, a stepparent is not an equivalent substitute. As the United States Supreme Court noted in Troxel v. Granville, 530 U.S. 57, 65 (2000) (citing Prince v. Massachusetts, 321 U.S. 158, 166 (1944)), “It is cardinal with us that the custody, care[,] and nurture of the child reside first in the parents ...” The law will favor a natural parent over all others if all things are equal. Devine v. Martens, 371 Ark. 60, _ S.W.3d _ (2007); Manuel v. McCorkle, 24 Ark. App. 92, 749 S.W.2d 341 (1988). It is presumed that it is in a child’s best interest to be in the primary care of a parent. In custody cases there is a preference for the parent above all other custodians, and that preference for the natural parent must prevail unless it is established that the natural parent is unfit. Golden v. Golden, 57 Ark. App. 143, 942 S.W.2d 282 (1997) (citing Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988)). While these holdings were made in guardianship and grandparent visitation cases, the guiding factor was precisely the same as in the case at bar — the best interest of the child.
As appellee himself testified, he routinely worked shifts that would make it impossible on many days for him to ever see O.H. much less provide for her care. Upon our de novo review, we conclude that the trial court’s findings regarding O.H.’s best interest were clearly erroneous and clearly against the preponderance of the evidence. We accordingly reverse and remand with instructions to enter an order of custody consistent with this opinion.
Reversed and remanded.
Hart, Griffen, Heffley, and Miller, JJ., agree.
Pittman, C.J., Gladwin, Glover, and Vaught, JJ., dissent. | [
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John Mauzy Pittman, Chief Judge.
Appellant brings this appeal from an order dismissing its debt claim with prejudice for failure to provide appellee with notice of disposal of the collateral. We reverse and remand.
Appellee purchased a 2001 Dodge automobile from a Little Rock dealership in October 2003. Financing in the amount of $9,649 was provided by appellant pursuant to a retail installment contract that gave appellant a security interest in the vehicle. Appellee loaned the automobile to a non-insured driver, and the automobile was destroyed in an accident. The wrecked automobile was towed from the accident scene by direction of police authorities pursuant to Ark. Code Ann. § 27-50-1207 (Supp. 2007). Appellee and appellant were both notified by the towing firm pursuant to Ark. Code Ann. § 27-50-1208 (Supp. 2007) that the recovery, towing, and storage fees were due, and that the owner and lienholder would waive all right, title, and interest in the wrecked vehicle unless it was claimed within forty-five days by paying all accrued charges. Neither party claimed the wreck, and it was sold by the towing firm pursuant to Ark. Code Ann. § 27-50-1209 (Supp. 2007).
Appellant sued appellee on the installment contract, alleging that appellee was in default and seeking the remaining balance of $6,064.87, plus interest. Appellee moved to dismiss on the grounds that appellant had disposed of the collateral without sending appellee the notice required by Ark. Code Ann. § 4-9-611 (Repl. 2001) beforehand, and was thus barred from obtaining a deficiency judgment by the holding in Mooney v. Grant County Bank, 18 Ark. App. 224, 711 S.W.2d 841 (1986). The trial court agreed and dismissed appellant’s case with prejudice. On appeal, appellant argues that it had no duty to notify appellee of the pending sale of the collateral because the sale was ordered not by appellant, but instead by an unrelated third party. We agree, and we reverse.
It was error to hold that the appellant finance company had a duty under Ark. Code Ann. § 4-9-611 to notify appellee that the towing company intended to dispose of the collateral. The towing company had a first-priority possessory lien on the collateral pursuant to the express terms of Ark. Code Ann. § 27-50-1207(a)(1), and it was the towing company’s duty under Ark. Code Ann. § 27-50-1209 to notify appellee of its intent to foreclose on this lien. The towing company did so. Appellant never possessed or disposed of the collateral under Ark. Code Ann. § 4-9-610 (Repl. 2001), and it was therefore not required to give the notice required by Ark. Code Ann. § 4-9-611 before such a disposition was made. Even had appellant, as secondary lienholder, actually obtained possession of the collateral from the towing company pursuant to Ark. Code Ann. § 4-9-618 (Repl. 2001), subsection (b)(1) of that statute expressly states that this would not be a disposition of collateral under Ark. Code Ann. § 4-9-610. Clearly, appellant had no duty to provide the notice required by Ark. Code Ann. § 4-9-611 for disposition of collateral pursuant to § 4-9-610. Disposition in this case was by the towing company under its lien pursuant to Ark. Code Ann. § 27-50-1209, not by appellant under Ark. Code Ann. § 4-9-610.
Reversed and remanded.
Robbins and Marshall, JJ., agree. | [
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Sarah Heffley, Judge.
Appellant appeals the order of forfeiture of bail bond entered against it in the Lonoke County Circuit Court. On appeal, appellant asserts that the trial court should have dismissed the bond forfeiture action because the State failed to file a civil forfeiture action separate from the criminal proceeding. We find no merit in appellant’s argument and affirm.
On January 13, 2006, Leonardo Gonzalez was arrested and charged with felony possession of a controlled substance with intent to deliver. Appellant executed a bail bond in the amount of $50,000 to ensure Gonzalez’s appearance in court. When Gonzalez failed to appear in court on June 20, 2006, however, a bench warrant was issued for Gonzalez’s arrest, and a summons/order for appellant to appear and show cause why the bail bond should not be forfeited was issued. Appellant received this summons/order by certified mail on June 30, 2006.
Appellant appeared at several subsequent show cause hearings held on October 10, 2006, December 18, 2006, and February 13, 2007. On March 22, 2007, appellant filed a motion to dismiss the bond forfeiture action, arguing that a separate civil case was never filed by the State and that the court did not have jurisdiction to enter a civil forfeiture judgment in a criminal action. At a hearing on the matter held on July 16, 2007, appellant cited Ark. Code Ann. § 16-84-207 (Repl. 2005), which governs actions on bail bonds in circuit courts, and specifically subsection (e)(2), which states: “The summons required under subsection (b) of this section shall be made returnable and shall be executed as in civil actions, and the action shall be docketed and shall proceed as an ordinary civil action.” Appellant argued that under this statute, the State was required to file a civil forfeiture action separate from the criminal proceeding, and because this was not done, no judgment could be entered against appellant.
In an order filed July 17, 2007, the circuit court found appellant’s argument unpersuasive. First, the court stated that Rule 4 of the Arkansas Rules of Civil Procedure provides that a summons shall be styled in the name of the court, contain the names of the parties, be directed to the defendant, contain the name and address of the plaintiffs attorney, if any, otherwise the address of the plaintiff and the time required to appear. The court noted that the order for issuance of arrest warrant and summons/order for surety to appear complied with these requirements of Rule 4 and therefore complied with Ark. Code Ann. § 16-84-207 (e)(2). Second, the court found that the motion to dismiss was not made until approximately nine months after appellant was served, and thus was “clearly outside the proper time for the filing of such motions.” An order for forfeiture of the bail bond was entered on July 24, 2007, and appellant filed a notice of appeal on August 9, 2007.
On appeal, appellant again argues that the State failed to comply with Ark. Code Ann. § 16-84-207 (e)(2) by failing to initiate a separate civil forfeiture action, and the court erred in entering a civil judgment in a criminal action. In essence, appellant is arguing that the trial court lacked jurisdiction to enter the forfeiture order. Appellant’s argument may appear untimely, as it was not raised to the trial court until almost nine months after appellant was served and had appeared at multiple hearings without objection; however, jurisdiction cannot be waived and can be raised at any time. Avery v. State, 93 Ark. App. 112, 217 S.W.3d 162 (2005). Nonetheless, we hold that the trial court properly exercised jurisdiction and ordered the bond forfeited.
Appellant is simply incorrect in its interpretation of section 16-84-207 (e)(2). The language of the statute requires the summons to be issued “as in civil actions,” and dictates that the action will “proceed as an ordinary civil action” within the context of the ongoing criminal case. We see no requirement that the State file a separate civil action. In fact, section 16-84-207(e)(l) states: “No pleading on the part of the state shall be required in order to enforce a bond under this section.” This interpretation of section 16-84-207(e)(2) is also supported by the model Order for Issuance of Arrest Warrant and Summons/Order for Surety to Appear, as promulgated by our supreme court in its revision of Rule 9.5 of the Rules of Criminal Procedure in 2005, which clearly indicates that the order should bear the criminal case number of the underlying criminal action. See also Hood v. State, 237 Ark. 332, 372 S.W.2d 588 (1963) (holding that bond forfeiture is a criminal proceeding). We agree with the trial court’s ruling that the summons/order in this case properly complied with section 16-84-207, and we hold that the trial court did not err in ordering the bond forfeiture.
Affirmed.
Griffen and Glover, JJ., agree. | [
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WAYMOND M. BROWN, Judge
| Appellants Golden Years Manor and Cannon Cochran Management Services, Inc., appeal the November 18, 2014 decision of the Arkansas Workers’ Compensation Commission (Commission) granting appellee additional benefits in the form of temporary-total-disability benefits (TTD) from May 11, 2011 until August 1, 2011, and from March 9, 2012 through February 12, 2013. The Commission also found that appellee had proved that she had sustained 14 percent permanent anatomical impairment, as well as 25 percent wage-loss disability. On appeal, appellants contend that (1) this court’s decision in Delargy v. Golden Years Manor was in error because this court improperly decided the issue of appellee’s receipt of the Form AR-N and (2) the evidence was insufficient to support the Commission’s finding |2that appellee’s treatment by Dr. Richard D. Peek was reasonable and necessary and that appellee was entitled to TTD, perma nent impairment, or wage-loss disability. We affirm.
Appellee suffered a compensable lumbar-spine injury on October 13, 2009, when helping to lift a resident from the floor to an ambulance stretcher while working as a licensed practical nurse for appellant Golden Years Manor. Appellants paid for medical treatment and other benefits until August 2010. The payments ceased following appellee’s release by Dr. Edward H. Saer, III. Dr. Saer opined that appellee had reached maximum, medical improvement (MMI) as of June 17, 2010, with no impairment rating for the work-related injury. Appellee began treating with Dr. Peek on March 29, 2011. Dr. Peek performed back surgery on appellee on May 11, 2011. Appellee’s pain improved, and she was able to return to work in August 2011. Appellee subsequently received trigger-point injections in September, November, and January. She continued to work through January 31, 2012. Dr. Peek opined on March 9, 2012, that appellee was “disabled from employment.” He recommended that appellee undergo another surgery on her back. Appellee’s second surgery took place on April 10, 2012. Her pain decreased, and she received a trigger-point injection on May 10, 2012. In February 2013, Dr. Peek stated that it was his opinion that appellee’s back injury in October 2009 resulted in 25 percent permanent impairment to the body. The parties stipulated that appellee reached MMI on February 12, 2013.
In the prior appeal, this court reversed the Commission’s finding that appellee was not entitled to further benefits because we held that appellee was not properly notified of her [ 3change-of-physician rights and responsibilities. We remanded the case to the Commission so that it could consider the other controverted issues in light of our holding that the change-of-physician rules did not apply. Upon remand, the Commission granted appellee benefits. This timely appeal followed.
In appeals involving claims for workers’ compensation, we view the evidence in the light most favorable to the Commission’s decision and affirm the decision if it is supported by substantial evidence. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. The issue is not whether we might have reached a different result than the Commission, but whether reasonable minds could reach the Commission’s decision. Additionally, questions concerning the credibility of witnesses and the weight to be given to their testimony are within the Commission’s exclusive province.
For their first point, appellants argue that the issue of the Form AR-N was improperly raised in the prior appeal. This point is barred by the law-of-the-case doctrine. The law-of-the-case doctrine prohibits a court from reconsidering issues of law and fact that have already been decided on appeal. The doctrine provides that a decision of an appellate court ^establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review. The doctrine serves to effectuate efficiency and finality in the judicial process, and its purpose is to maintain consistency and avoid reconsideration of matters once decided during the course of a single, continuing lawsuit. The law-of-the-case doctrine requires us to adhere to our decision on the first appeal, whether it was right or wrong.
Next, appellants contend that the evidence was insufficient to support the Commission’s award of benefits. More specifically, appellants argue that the evidence was insufficient to support the Commission’s finding that appellee’s treatment by Dr. Peek was reasonable and necessary. They further contend that because the treatment was not reasonable and necessary, the Commission’s grant of TTD, permanent impairment, and wage loss to appellee is not supported by the evidence.
Arkansas Code Annotated section 11 — 9—508(a) requires an employer to promptly provide an injured worker medical treatment “as may be reasonably necessary in connection with the injury received by the employee.” The employee must prove by a preponderance |Rof the evidence that medical treatment is reasonable and necessary. What constitutes reasonably necessary treatment is a question of fact the Commission decides. Medical treatment intended to reduce or enable an injured worker to cope with chronic pain attributable to a compensable injury ■ may constitute reasonably necessary medical treatment.
Here, appellee sought medical treatment on her own when appellants discontinued payments. As a result of that treatment, she underwent two surgeries in an attempt to alleviate pain associated with her com-pensable spine injury. She testified that following her first surgery, she could control the pain better; however, she stated that the pain got progressively worse between the two surgeries. She stated that her pain declined “quite a bit” after the second surgery. She admitted that she was not pain-free, but stated that she was able to “control [it] a lot better” and that it had “leveled off.” Appellee stated that she had not returned to work since her second surgery and acknowledged that she was currently seeking medical disability. The Commission found that appellee’s post-surgical improvement was evidence that the surgeries were reasonable and necessary. Substantial evidence supports the Commission’s finding.
When an injured employee is totally incapacitated from earning wages and remains within her healing period, she is entitled to temporary-total disability. The healing period ^continues until the employee is as far restored as the permanent character of her injury will permit; and it ends when the underlying condition causing the disability has become stable, and nothing in the way of treatment will improve that condition. The determination of when the healing period has ended is a factual determination for the Commission.
Appellee remained off work until August 1, 2011, following her first surgery. She worked until January 31, 2012, when she again left due to pain associated with her injury. On March 9, 2012, Dr. Peek opined that appellee was disabled from employment. Appellee’s second surgery took place on April 10, 2012, and the parties stipulated that she did not reach MMI until February 12, 2013. The evidence supports the Commission’s finding that ap-pellee was entitled to TTD from May 11, 2011 until August 1, 2011, and from March 9, 2012 to February 12, 2013.
Permanent impairment is any permanent functional or anatomical loss remaining after the healing period has ended. Any determination of the existence or extent of physical impairment must be supported by objective and measurable findings. The Commission may rely on the ratings assigned by a physician, or it may assess its own impairment rating.
Dr. Peek assigned appellee an impairment rating of 25 percent. The Commission 17rejected Dr. Peek’s rating and assessed its own rating using the American Medical Association Guides. The Commission found that appellee’s two back surgeries entitled her to a 14 percent impairment rating. Substantial evidence supports this finding.
Pursuant to Arkansas Code Annotated § 11—9—522(b)(1), when a claimant has an impairment rating to the body as a whole, the Commission has the authority to increase the disability rating based upon wage-loss factors. The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. The Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other factors affecting wage loss, such as the claimant’s age, education, and work experience. Motivation, post-injury income, credibility, demeanor, and a multitude of other factors are matters to be considered in claims for wage-loss-disability benefits in excess of permanent-physical impairment.
The Commission found that based on appellee’s “relatively young age of 39, her experience in the health care field, and her lack of interest in returning to employment within her restrictions,” she was entitled to 25 percent wage-loss disability. This finding is supported by substantial evidence. Accordingly, we affirm.
[ ^Affirmed.
Vaught and Hoofinan, JJ., agree.
. 2014 Ark. App. 499, 442 S.W.3d 889.
. Delargy, 2014 Ark. App. 499, 442 S.W.3d 889.
. Id.
. Moss v. Rogers Logging Co., 2014 Ark. App. 277, 2014 WL 1758886.
.Id.
. Id.
. Id.
. Carter v. Cline, 2013 Ark. 398, 430 S.W.3d 22.
. Id.
. Id.
. Id.
. Most of this argument centers on the Commission’s first decision as well as the opinion of the ALJ. However, it is well settled that the ALJ’s findings are irrelevant for purposes of appeal, as this court is required by precedent to review only the findings of the Commission and ignore those of the ALJ. See Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001).
. (Repl. 2012).
. Nabholz Constr. Corp. v. White, 2015 Ark. App. 102, 2015 WL 711824.
. Id.
. Id.
. Riggs v. B & S Contractors, Inc., 2010 Ark. App. 554, 377 S.W.3d 466.
. Carroll Gen. Hosp. v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996).
. Id.
. Thompson v. Mountain Home Good Samaritan Village, 2014 Ark. App. 493, 442 S.W.3d 873.
. Id.
. Id.
. (Repl. 2012).
. Redd v. Blytheville Sch. Dist. No. 5, 2014 Ark. App. 575, 446 S.W.3d 643.
. Lee v. Alcoa Extrusion, Inc., 89 Ark. App. 228, 201 S.W.3d 449 (2005).
. Redd, supra.
. Id. | [
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COURTNEY HUDSON GOODSON, Justice.
| jAppellant Alonzo Watson appeals the order entered by the Pulaski County Circuit Court denying his petition for postcon-viction relief that he brought pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure. For reversal, Watson contends that the circuit court erred in ruling that he did not receive ineffective assistance of counsel at trial and on appeal. We affirm the circuit court’s decision.
The record reflects that the prosecuting attorney in Pulaski County charged Watson with capital murder in connection with the death of Daniel Harris, whose body was found in a deserted area near a warehouse in Jacksonville on the morning of September 3, 2010. The evidence at trial disclosed that Harris died of blunt-force trauma to the head after having been struck multiple times with a piece of concrete. Watson was the last known person seen with Harris prior to his demise. In the early-morning hours of September 3, Watson encountered a number of persons and confessed to four of them that he had killed someone. 12One of those persons was Sara Whipple, Watson’s girlfriend, who testified that Watson appeared at her home at approximately 3:00 a.m. and that Watson had scratches on his body and blood on his clothing. Another was Marcus Hildreth who, in addition to seeing Watson on the morning of the murder, was later incarcerated with Watson after Watson’s arrest for Harris’s murder. Hildreth testified that Watson told him during their incarceration that “there had been a fight” and that he had struck Harris with a rock. A jury in Pulaski County found Watson guilty of capital murder. The prosecutor had waived the death penalty; therefore, the conviction resulted in a sentence of life imprisonment without parole. Watson appealed his conviction and sentence, and this court affirmed on the sole issue that the circuit court did not err in denying Watson’s motion to suppress a statement that he had given to the police. Watson v. State, 2012 Ark. 430, 2012 WL 5586015.
On January 16, 2013, Watson filed a timely petition for postconviction relief in which he asserted that he had received ineffective assistance of counsel at trial and on direct appeal. By an order dated April 22, 2013, the circuit court denied the petition without a hearing. This appeal followed.
At the outset, we note that this court does not reverse the denial of post-conviction relief unless the circuit court’s findings are clearly erroneous. Conley v. State, 2014 Ark. 172, 433 S.W.3d 234. A finding is clearly erroneous when, although there is evidence to support it, after reviewing the entire evidence, we are left with the definite and firm conviction that a mistake has been committed. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality |3of the evidence. State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830.
Our standard of review also requires that we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Springs v. State, 2012 Ark. 87, 387 S.W.3d 143. In asserting ineffective assistance of counsel under Strickland, the petitioner first must demonstrate that counsel’s performance was deficient. Williams v. State, 2011 Ark. 489, 385 S.W.3d 228. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Adams v. State, 2013 Ark. 174, 427 S.W.3d 63. The reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Scott v. State, 2012 Ark. 199, 406 S.W.3d 1. 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. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55.
Second, the petitioner must show that the deficient performance prejudiced the defense, which requires a demonstration that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Myers v. State, 2012 Ark. 143, 400 S.W.3d 231. This requires the petitioner to show that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. White v. State, 2013 Ark. 171, 426 S.W.3d 911. A reasonable probability is a probability sufficient to undermine confidence in the outcome |4of the trial. Golden v. State, 2013 Ark. 144, 427 S.W.3d 11.
Unless a petitioner makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Taylor v. State, 2013 Ark. 146, 427 S.W.3d 29. We also recognize that “there is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Anderson v. State, 2011 Ark. 488, at 3-4, 385 S.W.3d 783, 787 (quoting Strickland, 466 U.S. at 697, 104 S.Ct. 2052).
On appeal, Watson argues that he was denied effective assistance of counsel in a number of respects. First, Watson argues that his trial counsel was ineffective for not investigating the possibility that another individual, Allen Boyd, may have committed the murder. In his petition, Watson alleged that Boyd had given a statement to the police advising that Harris had raped Whipple three weeks prior to the murder. Watson argued that the rape provided a motive for Boyd to kill Harris because it was “common knowledge in the community” that Boyd, Whipple’s former boyfriend “was very distraught over her ending their relationship” and that Boyd was an “extremely jealous and a very violent man.” Watson continues to argue on appeal that his counsel had a duty to investigate all possible defense strategies and that, had counsel investigated this matter, it is likely that the jury’s attention would have been drawn to Boyd because of Boyd’s motive to kill Harris.
In its order, the circuit court dismissed this claim on the ground that the allegation lacked factual substantiation, as there was no evidence connecting Boyd to the murder. We cannot say that the circuit court’s finding is clearly erroneous. Although it is true that counsel |fihas a duty to make a reasonable investigation or to make a reasonable decision that makes particular investigations unnecessary, a petitioner under Rule 37.1 who alleges ineffective assistance of counsel for failure to perform adequate investigation must delineate the actual prejudice that arose from the failure to investigate and demonstrate a reasonable probability that the specific materials that would have been uncovered with further investigation could have changed the outcome of trial. See Breeden v. State, 2014 Ark. 159, 432 S.W.3d 618 (per curiam). The burden is entirely on the claimant to provide facts that affirmatively support his claims of prejudice, as neither conclusory statements nor allegations without factual substantiation are sufficient to overcome the presumption that counsel was effective, and such statements and allegations will not warrant granting postconviction relief. Bryant v. State, 2013 Ark. 305, 429 S.W.3d 193 (per curiam). A petitioner who asserts ineffective assistance for failure to investigate must show that further investigation would have been fruitful, and that the specific materials identified that counsel could have uncovered would have been sufficiently significant to raise a reasonable probability of a different outcome at trial. Watson v. State, 2012 Ark. 27, 2012 WL 234634 (per curiam). Thus, to prevail under Strickland, Watson was required to establish with facts that counsel made an error so serious that counsel was not functioning as the “counsel” guaranteed him by the Sixth Amendment. Thornton v. State, 2014 Ark. 113, 2014 WL 1096263 (per curiam). In this case, aside from alleging that Boyd had a potential motive for killing Harris, Watson does not present any facts beyond speculation that Boyd had anything to do with Harris’s murder. As such, this allegation is conclusory and does not provide a basis for postconviction relief.
| (jUnder this point, Watson also contends that the circuit court should have allowed an evidentiary hearing to develop further facts on this issue. However, the strong presumption in favor of counsel’s effectiveness cannot be overcome by a mere possibility that an evidentiary hearing might produce evidence to bolster an allegation contained in a petition for post-conviction relief. Hickey v. State, 2013 Ark. 237, 428 S.W.3d 446; Nance v. State, 339 Ark. 192, 4 S.W.3d 501 (1999). The supporting facts must appear in the petition, and the petitioner cannot rely on the possibility that facts will be elicited from witnesses if a hearing is held. Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989). Conclusory allegations that are unsupported by facts do not provide a basis for either an evidentiary hearing or postconviction relief. Nance, supra. Therefore, we cannot conclude that the circuit court erred by not conducting a hearing on this matter.
Watson also submits that counsel was ineffective for failing to investigate, uncover, and utilize State’s witness Sara Whipple’s mental-health history to good advantage at trial. Again, relying on Boyd’s statement to the police, Watson alleges that Boyd had told the police that Whipple suffered from bipolar disorder and schizophrenia and that, had trial counsel investigated this information, counsel could have mounted a more serious attack on Whipple’s credibility during cross-examination.
Watson has changed his argument on appeal. Before this court, Watson contends that counsel should have investigated Whipple’s mental health with an eye toward more effective cross-examination. However, in his Rule 37.1 petition, Watson alleged that counsel, armed with information concerning Whipple’s mental health, was ineffective for not requesting a 17mental evaluation and a hearing for the circuit court to determine Whipple’s competency as a witness. In addressing the issue actually raised in the petition, the circuit court noted that a witness is presumed to be competent and ruled that Watson’s bare allegation that Whipple’s competence might have been questioned did not support the claim that counsel should have requested an examination and a hearing held on her competency. Moreover, the circuit court found that Watson suffered no prejudice because, even with the exclusion of Whipple’s testimony, there was no reasonable probability that the outcome of trial would have been different, given the other evidence of Watson’s guilt. It is clear from the record that the argument advanced on appeal is not the same issue that Watson raised in his petition. An appellant cannot change the grounds for an argument for the first time on appeal. Mathis v. State, 2014 Ark. 148, 2014 WL 1344427 (per curiam); Hogan v. State, 2013 Ark. 223, 2013 WL 2295431 (per curiam). We address this issue no further.
Next, Watson argues that trial counsel was ineffective for not objecting when the prosecuting attorney made improper remarks during closing argument. He contends that the prosecutor made veiled references to his Fifth Amendment right to remain silent by commenting on testimony that Watson refused to give a DNA sample and that he gave a sample only after being compelled to do so by court order. Citing Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and this court’s decision in Bailey v. State, 287 Ark. 183, 697 S.W.2d 110 (1985), he asserts that it is constitutional error under the Fifth Amendment for the prosecution to draw an adverse inference from the accused’s invocation of his right against self-incrimination. He maintains that the prosecutor’s argument with respect to withholding his DNA was Isdesigned to focus the jury’s attention on his right to remain silent.
Where it is asserted that counsel was ineffective for faffing to make a motion or argument, the petitioner must show that the motion or argument would have been meritorious because the failure to make an argument that is meritless is not ineffective assistance of counsel. Conley, supra. This court has observed that the protections of the Fifth Amendment do not extend to demonstrative, physical tests but are intended to immunize a defendant from providing the State with evidence of a testimonial or communicative nature. Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996). This court has also held that the results of DNA testing fall within the category of demonstrative, physical tests and do not constitute testimony or a communicative act. Talley v. State, 2010 Ark. 357, 377 S.W.3d 222. Furthermore, we have said that the Fifth Amendment right against self-incrimination is not implicated by DNA testing. Id. In light of these principles, it cannot be said that an objection to the prosecutor’s statements would have been successful, as the fact that Watson would not voluntarily provide a DNA sample does not speak to a violation of the Fifth Amendment. The prosecutor’s remarks were otherwise based on the testimony presented at trial, and no error exists when an attorney’s comment during closing argument is directly reflecting or inferable from testimony at trial. Stewart v. State, 2012 Ark. 444, 2012 WL 5963224. The circuit court’s rejection of this claim is not clearly erroneous.
In another issue, Watson claims that he received ineffective assistance of counsel on direct appeal. He contends that appellate counsel should have mounted a challenge to the sufficiency of the evidence because the issue was preserved for appeal, as trial counsel had |9moved for a directed verdict, and because the evidence did not support a finding that he committed the murder.
A convicted defendant has the right to effective assistance of counsel on appeal in accordance with the Sixth Amendment. Howard v. State, 291 Ark. 633, 727 S.W.2d 830 (1987). A hallmark of appellate advocacy is the process of assessing arguments and focusing on those likely to prevail. Malone v. State, 294 Ark. 127, 741 S.W.2d 246 (1987). An attorney need not advance every possible argument, regardless of merit. Howard, supra; see also Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992). The petitioner claiming that counsel was ineffective on appeal bears the burden of making a clear showing that counsel failed to raise a meritorious issue. Howard, supra.
This court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence. Green v. State, 2013 Ark. 497, 430 S.W.3d 729. In addressing this issue, we consider all of the evidence, including that which may have been inadmissible, in the light most favorable to the State. Fondren v. State, 364 Ark. 498, 221 S.W.3d 333 (2006). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence. Wells v. State, 2013 Ark. 389, 430 S.W.3d 65. Substantial evidence is evidence that is forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Stevenson v. State, 2013 Ark. 100, 426 S.W.3d 416. At issue is the charge of capital murder. A person commits this offense if, with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person. Ark.Code Ann. § 5-10-101(a)(4) (Repl.2013).
| ^Viewing the evidence in the light most favorable to the State, the record of trial discloses that Harris’s brother, O’taravious Harris, testified that he, Harris, and Watson spent the evening together and ended up at his and Harris’s home where they drank and played pool. He said that Watson and Harris left the home and that he later spoke with them on the phone at approximately 2:15 a.m. Whipple testified that Watson knocked on her bedroom window at about 3:00 a.m. She said that Watson was behaving as though he was scared and upset and that he told her that he had killed someone. Whipple noticed that he had scratches and blood on him, and she did not allow him in the house. She recalled that, the next day, Watson was worried about the presence of DNA and that he wanted to burn his clothing. Vicki Jones testified that Watson appeared at her home at 3:50 a.m. She said that Watson was not wearing a shirt and that he was sweating. She did not let him inside. Marcus Hildreth testified that he saw Watson outside Jones’s house and that he gave Watson a ride. He said that Watson appeared as though he had been in a fight and that he seemed paranoid and nervous. Hildreth stated that Watson told him that he had “burnt” someone. Hildreth also picked up Jeff Neely and Adrian Hadley at an apartment complex. Neely and Hadley testified that Watson repeated several times that he had killed someone. Hildreth also testified that Watson later told him in jail that he had struck Harris in the head with a rock.
The foregoing testimony constitutes substantial evidence to support the guilty verdict. Watson was the last person seen with Harris, and he told four persons that same morning that he had killed someone. Further, the murder weapon was a piece of concrete, and Watson confessed to Hil-dreth that he had used a rock to commit the murder. In light of the evidence, | nwe hold that appellate counsel was not ineffective for not challenging the sufficiency of the evidence because that argument would not have succeeded on appeal.
As his last issue, Watson contends that recent decisions of the United States Supreme Court mandate that this case be remanded to the circuit court for the appointment of counsel and a new Rule 37.1 proceeding. Although Watson makes a passing reference to Trevino v. Thaler, — U.S. -, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), he places chief reliance on the opinion of Martinez v, Ryan, — U.S. -, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), to argue that he is entitled to representation of counsel in his postconviction action.
In March 2012, the United States Supreme Court decided Martinez, holding in part that “when, a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an ineffective-assistance claim where the state courts did not appoint counsel in the initial-review collateral proceeding for a claim of ineffective assistance at trial.” Martinez, 132 S.Ct. at 1318. In other words, where state law bars a defendant from raising claims of ineffective assistance of trial counsel on direct appeal, “a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” Id., 132 S.Ct. at 1320; see also Dansby v. Norris, 682 F.3d 711, 729 (8th Cir.), adhered to on denial of reh’g sub nom. Dansby v. Hobbs, 691 F.3d 934 (8th Cir.2012). In 2013, the Supreme Court revisited the procedural-default issue in Trevino and stated that the Martinez Court had read the previous decision in Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) h2“as containing an exception, allowing a federal habeas court to find “cause,” thereby excusing a defendant’s procedural default, where (1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim; (2) the “cause” consisted of there being “no counsel” or only “ineffective” counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the “initial” review proceeding in respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state law requires that an “ineffective assistance of trial counsel [claim] ... be raised in an initial-review collateral proceeding.” Trevino, — U.S. at -, 133 S.Ct. at 1918 (alteration in original) (citing Martinez, — U.S. at -, 132 S.Ct. at 1318-19, 1320-21). In Paige v. State, 2013 Ark. 432 (per curiam), this court briefly discussed the holdings of Martinez and Trevino and commented that neither decision dictates that counsel must be appointed on appeal in a postcon-viction proceeding.
Be that as it may, the issue Watson raises on appeal was not presented to the circuit court. In his petition for postcon-viction relief, Watson made a general request for the appointment of counsel. However, he did not argue, as he does on appeal, that the appointment of counsel was required under the Martinez decision. As we have stated, we do not consider issues that are raised for the first time on appeal. Tornavacca v. State, 2012 Ark. 224, 408 S.W.3d 727.
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Per Curiam.
In an unpublished opinion, we recently affirmed an award of interest and fees in this condemnation case. The Garners now request attorney’s fees and costs for expenses incurred in successfully defending the appeal. We grant their request and award them $10,000 in fees and $458.79 in costs.
The Beaver Water District condemned seventy acres of the Garners’ land in January 2003. The Garners initially challenged the necessity of the taking, but later conceded necessity after a long discovery process. A jury later valued the condemned property at $900,000, approximately twice the sum deposited by the District into the registry of the court. The circuit court entered judgment on February 5, 2007, awarding the Garners $900,000 on the jury’s verdict; prejudgment interest of 7% on the jury’s verdict from January 23, 2003, until March 28, 2005; prejudgment interest of 7% on $447,455 from March 28, 2005, until entry of the judgment; attorney’s fees of $75,000; and postjudgment interest at the rate of 10% on the $447,455, the $75,000 attorney’s fees, and the amount of the prejudgment interest. The District challenged the award of interest and attorney’s fees, but we affirmed the award in an unpublished opinion. See Beaver Water Dist. v. Garner, CA 07-777 (Ark. Ct. App. Mar. 12, 2008).
The Garners now request $11,715 in attorney’s fees and $458.79 for costs expended on appeal. They contend that their request is proper under Ark. Code Ann. § 18-15-605(b) (Repl. 2003), which provides for attorney’s fees in cases where the amount awarded by the jury exceeds the amount deposited in the registry of the court by more than twenty percent. They also cite other cases where the Arkansas Supreme Court has awarded attorney’s fees and costs on appeal. See Jones v. Jones, 327 Ark. 195, 938 S.W.2d 228 (1997) (awarding $8000 in a child-custody appeal); Elkins v. Coulson, 293 Ark. 539, 739 S.W.2d 675 (1987) (denying a writ of prohibition against the court of appeals for awarding attorney’s fees on appeal and noting that the court of appeals had the jurisdiction and authority to award attorney’s fees in divorce actions); Warner Holdings Ltd. v. Abrego, 285 Ark. 434, 688 S.W.2d 724 (1985) (awarding various fees in a second appeal from a mortgage foreclosure); In re Smith, 183 Ark. 1025, 39 S.W.2d 703 (1931) (showing that the supreme court has the power to order a spouse to award costs as an incident to the appellate jurisdiction of the court, though it could not do so in that case for lack of jurisdiction).
As we indicated in our original opinion, when the State (or an entity acting as an arm of the State) condemns property belonging to another, it is obligated to put the owner in as good a position pecuniarily as he would have been had his property not been taken. See Kirby Forest Indus., Inc. v. United States, 467 U.S. 1 (1984). We also observed that the language in § 18-15-605(b) mandates an attorney’s fee in cases where the jury award exceeds the money deposited in the registry of the court by at least twenty percent. In considering the current request for fees and costs, we find support in Arkansas State Highway Commission v. Stupendi, 222 Ark. 9, 13, 257 S.W.2d 37, 40 (1953) (quoting Jacobs v. United States, 290 U.S. 13 (1933) (“The owner is not limited to the value of the property at the time of the taking; ‘he is entitled to such addition as will produce the full equivalent of that value paid contemporaneously with the taking.’ ”) (emphasis added)); see also Arkansas State Hwy. Comm’n v. Vick, 284 Ark. 372, 682 S.W.2d 731 (1985) (citing Stupendi and holding that the owners were entitled to interest at a rate that exceeded that specified by statute, as the rate mandated by statute was insufficient to fully compensate the owners for the taking).
Under both the federal and state constitutions, the Garners must be placed financially in the position they were in before this property was taken. As a result of the taking, they have lost their land, for which they were compensated by the $900,000 jury award. They have lost use of the land during the pendency of the litigation, for which they were awarded prejudgment and postjudgment interest. They have incurred expenses in assuring that the District fully compensated them for the taking, for which they were awarded attorney’s fees at the trial level. Now, the Garners have incurred expenses in defending the appeal. To place them in the position they were in prior to the taking, we grant their request for attorney’s fees and costs incurred on appeal.
Therefore, we award the Garners $10,000 in attorney’s fees and $458.79 in costs for successfully defending this appeal.
Gladwin, J., not participating.
The order dismissing the necessity issue was entered March 28,2005. | [
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John Mauzy Pittman, Chief Judge.
This is an appeal from dismissal of a lawsuit alleging that appellee, a resident of Virginia, entered into a contract with appellant, an Arkansas resident, for appellant to pursue a wrongful-death action in Arkansas on appellee’s behalf by acting as special administrator of a lawsuit for the wrongful death of appellee’s sister. It was also alleged that, in return for acting in this capacity, appellee agreed to pay appellant fifty percent of the monies that appellee would receive from the lawsuit; that a settlement in excess of one million dollars was reached through appellant’s efforts; and that appellee was in breach of that contract by fading to compensate appellant as promised in the parties’ contract. On appellee’s motion, the trial court dismissed appeUant’s suit on the grounds that Arkansas lacked personal jurisdiction over appellee. Appellant contends that this was error. We agree, and we reverse.
Pursuant to Ark. Code Ann. § 16-4-101 (B) (Repl. 1999), Arkansas courts have personal jurisdiction of all persons, and all causes of action or claims for relief, to the maximum extent permitted by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The United States Supreme Court has established a two-pronged test to determine whether state courts may maintain personal jurisdiction over a nonresident person under the Due Process Clause. The party must first show that the nonresident has had sufficient “minimum contacts” with this state and, second, must show that the court’s exercise of jurisdiction would not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). A finding of personal jurisdiction must be based on some act by which the defendant purposefully avails himself or herself of the privilege of conducting business in the forum state. Hanson v. Denckla, 357 U.S. 235 (1957), and the contacts should be such as would cause a defendant to have a reasonable anticipation that he or she would be haled into court in that state. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980). We have considered the following factors in deciding whether or not a nonresident’s contacts with the forum state were sufficient to impose jurisdiction: (1) the nature and quality of the contacts with the forum state; (2) the quantity of the contacts with the forum state; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) the convenience of the parties. Moran v. Bombardier Credit, Inc., 39 Ark. App. 122, 839 S.W.2d 538 (1992). Whether the “minimum contacts” requirement has been satisfied is a question of fact, and each question of jurisdiction must be decided on a case-by-case basis. Id.
We hold without hesitation that the trial court did in fact have personal jurisdiction over appellee in the case at bar. It was alleged that appellee had visited her sister several times in Arkansas and that, during one such visit, she arranged for appellant to help care for her sister. As the sister’s health deteriorated, she was placed in various Arkansas nursing homes, one of which ultimately being the defendant in the wrongful-death lawsuit. Although the lawsuit was brought in the name of the sister’s estate, appellee was her sister’s sole heir-at-law, and the proceeds of the wrongful-death lawsuit were the sole asset of the estate. This asset was obtained through the efforts of appellant, pursuant to an agreement with appellee that was performed in Arkansas, by terms of which appellant investigated and pursued the wrongful-death lawsuit as special administrator, an office to which he acceded pursuant to the agreement and to which he was appointed by the Circuit Court of Saline County, Arkansas. Thus, the contract required appellant to participate in the express invocation of the jurisdiction of the Arkansas courts to procure the only asset of the estate of appellee’s sister, to be administered and distributed by an Arkansas court in a probate proceeding in which appellee participated by voluntarily entering an appearance. The requisite minimum contacts exist because appellee has purposefully availed herself of the process and protection of the Arkansas courts to procure a large sum of money, and should have reasonably anticipated being required to appear in an Arkansas court if a dispute arose regarding an agreement, performed in Arkansas, that was an integral part in her procurement of that money. Requiring her to so appear in this case manifestly does not offend notions of fair play and substantial justice, and we hold that the trial court erred in dismissing appellant’s lawsuit. See Payne v. France, 373 Ark. 175, 282 S.W.3d 760 (2008).
Reversed and remanded for further consistent proceedings.
Bird and Vaught, JJ., agree. | [
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Wendell L.Griffen, Judge.
Previously, the Arkansas Workers’ Compensation Commission (Commission) found that Jerry Slaughter did not suffer a compensable injury in the form of a chemical exposure that led to his death. We reversed and remanded that case. On remand, the Commission awarded appropriate death benefits pursuant to Ark. Code Ann. § 11-9-527 (Repl. 2002), except for widow’s benefits. It denied widow’s benefits to La’Ronda Slaughter, Mr. Slaughter’s widow, because she was not married to him when he suffered the chemical exposure. Mr. Slaughter’s estate again appeals, arguing that the Commission erred in denying Mrs. Slaughter widow’s benefits.
The Commission denied widow’s benefits solely because Mrs. Slaughter was not married to the decedent when the injury occurred. The Commission’s analysis is fatally simplistic because § 11-9-527 does not require Mrs. Slaughter to prove that she was legally married to Mr. Slaughter when the injury occurred, although she was required to prove that she was dependent on him at that time. Additionally, the Commission failed to make any finding regarding whether Mrs. Slaughter was actually and wholly dependent on Mr. Slaughter when he died. In short, because the Commission misapplied § 11-9-527 and failed to make all of the necessary findings, we reverse and remand the case for further proceedings.
Mrs. Slaughter testified that she and Mr. Slaughter met in July 2004 and began living together “pretty close after that.” She said that, as early as September 2004, both she and Mr. Slaughter wore wedding rings, and that they planned to marry in February 2005.
Mr. Slaughter suffered direct chlorine-gas exposure to his face, nose, and throat on November 17, 2004, which injured his lungs and ultimately led to his death. At that time, he and Mrs. Slaughter were living together but were not married. Mrs. Slaughter offered uncontroverted testimony that Mr. Slaughter moved in with her and that she signed the lease but that they initially split rent, utilities, and the cost of food. When Mr. Slaughter moved in, Mrs. Slaughter was working, but she lost her job on November 9. Thus, by the time Mr. Slaughter was injured on November 17, he paid all of their expenses.
Mr. Slaughter was not hospitalized for his compensable injury until December 22, 2004. He and Mrs. Slaughter were married in the hospital on January 5, 2005. Mr. Slaughter died ten days later, on January 15, 2005. Mrs. Slaughter was appointed as the administratrix of her husband’s estate and subsequently pursued the workers’ compensation claim that gave rise to this appeal.
When reviewing a decision from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. See Fayetteville School Dist. v. Kunzelman, 93 Ark. App. 160, 217 S.W.3d 149 (2005). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether the appellate court might have reached a different result from the Commission; if reasonable minds could reach the result found by the Commission, the appellate court must affirm the decision. Id.
The sole issue in this case is whether the Commission erred in denying Mrs. Slaughter widow’s benefits. The estate argues that the mere fact that Mrs. Slaughter was married to and wholly dependent on Mr. Slaughter for her support when he died entitles her to widow’s benefits. It maintains that the relevant time for determining entitlement to widow’s benefits is the date of Mr. Slaughter’s death, not the date of his injury, because § 11-9-527 does not apply until a death occurs.
The employer counters that the correct date for determining Mrs. Slaughter’s entitlement to widow’s benefits is the date of the injury, not the date of Mr. Slaughter’s death. It asserts that adopting the estate’s construction of the relevant statutes would usurp the legislative function and would be completely contrary to the manner in which the compensation act is structured.
The issue on appeal may be resolved by a simple matter of statutory construction. Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. See Rose v. Arkansas State Plant Bd., 363 Ark. 281, 213 S.W.3d 607 (2005). In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. We construe the statute so that no word is left void, superfluous or insignificant, and we give meaning and effect to every word in the statute, if possible. Id. Thus, we seek to construe the relevant statutes in the instant case in such a manner as to give effect to them all, if possible. Id.
Widow’s benefits are one class of death benefits available under the workers’ compensation scheme. Section 11-9-527 provides in relevant part:
(c) BENEFICIARIES — AMOUNTS. Subject to the limitations as set out in §§ 11- 9-501 —■ 11-9-506, compensation for the death of an employee shall be paid to those persons who were wholly and actually dependent upon the deceased employee in the following percentage of the average weekly wage of the employee and in the following order of preference:
(l)(A)(i) To the widow if there is no child, thirty-five percent (35%), and the compensation shall be paid until her death or remarriage.
(ii) However, the widow shall establish, in fact, some dependency upon the deceased employee before she will be entitled to benefits as provided in this section[.]
Additionally, Arkansas Code Annotated § 11-9-527(h) provides that, “All questions of dependency shall be determined as of the time of the injury.” (Emphasis added.) Dependency is an issue of fact rather than a question of law, and the issue is to be resolved based upon the facts present at the time of the compensable injury. See Hoskins v. Rogers Cold Storage, 52 Ark. App. 219, 916 S.W.2d 136 (1996).
Accordingly, a person claiming entitlement to widow’s benefits pursuant to § 11-9-527 (c)(1) (A) (i), must establish two things: 1) that she is the decedent employee’s “widow”; and 2) that she was wholly and actually dependent on the decedent at the time of the injury. In turn, a “widow” is defined as “the decedent’s legal wife, living with or dependent for support upon him at the time of his death.” See Ark. Code Ann. § 11-9-102(20) (A) (Supp. 2007). According to the introductory clause of § 11-9-102, the definitions supplied therein apply throughout the worker’s compensation code. Therefore, the definition of widow under § 11-9-102(20)(A) governs the use of that term in § 11-9-527.
Clearly, the relevant date for determining questions of dependency is the date of the injury. See Ark. Code Ann. § 11-9— 527(h); Hoskins, supra. However, the definition of widow does not require a person to prove that she was married to the decedent on the date of the injury. See Ark. Code Ann. § ll-9-102(20)(A). Thus, whether someone is a widow is a separate determination that is not governed by § ll-9-527(h). Stated another way, while a dependent’s status turns on the date of the injury, a widow’s status does not. It follows then, that, determining a person’s status as a widow does not establish whether she is a dependent, and conversely, that establishing a person’s status as a dependent neither proves nor disproves whether that person is a widow.
Because the definition of widow applies to § 11-9— 527, effect may be given to all of the relevant statutes by requiring a person claiming benefits to satisfy each discrete requirement of §§ ll-9-102(20)(A), 11-9-527(c)(1)(A)(i), and ll-9-527(h). Hence, a person claiming to be a widow must show that she was legally married to and either living with or dependent upon the decedent when he died. See Ark. Code Ann. § ll-9-102(20)(A). A person claiming entitlement to widow’s benefits must show that she is a widow and was dependent on the claimant when he was injured. See Ark. Code Ann. § ll-9-527(c)(l)(A)(i) and § 11-9-527(h). On remand, the Commission should determine whether the estate met its burden of proof under these statutes.
Because the Commission failed to reconcile the definition of widow under § 11-9-102(20) (A) with the requirements of § 11-9-527(c) and (h), and failed to make the appropriate findings, we reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
Glover and Heffley, JJ., agree.
See Estate of Slaughter v. City of Hampton, 98 Ark.App. 409, 255 S.W.3d 872 (2007).
The employer also reminds this court that Arkansas generally does not recognize common-law marriages entered into within the State of Arkansas as legal marriages, even for workers’ compensation purposes. See Ark. Const, amend. 83 (defining marriage); Rockefeller v. Rocktfeller, 335 Ark. 145, 980 S.W.2d 255 (1998) (citing the general rule); and Orsburn v. Graves, 213 Ark. 727, 210 S.W.2d 496 (1948) (denying workers’ compensation benefits based on a common-law marriage claim). Nonetheless, this case does not involve a common-law marriage because Mrs. Slaughter was legally married to Mr. Slaughter when he died.
None of the limitations set out in these provisions are relevant in this case.
It is not a usurpation of the legislative function to apply different dates for the injury and for the resulting death because the Act already does so. In fact, § 11-9-527 itself reflects that the legislature recognizes that the date of death may be different from the date of injury. Section 11-9-527(b) provides: “If death does not result within one (1) year from the date of the accident or within the first three (3) years of the period for compensation payments fixed by the compensation order, a rebuttable presumption shall arise that the death did not result from the injury.” | [
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D.P. Marshall Jr., Judge.
This case is a dispute between adjoining landowners about who owns a strip of land. Although Linda Eaton (an absentee landlord) had actually held title to the disputed tract since 1986, Don England believed that the land was his. He had maintained and improved the strip since he bought his adjacent property in 1990. After England had the land surveyed and discovered that he did not own the disputed strip, he brought this adverse-possession suit. Eaton counterclaimed seeking ejectment and damages.
The circuit court, sitting as the trier of fact, split the disputed property. It found that England proved that he had adversely possessed the eastern part of the strip but not the western part. England appeals, arguing that the circuit court clearly erred in splitting the tract at an arbitrary point when his conduct and intent to possess the property on both sides of the court’s line was identical. He also argues that the circuit court erred in refusing to find a boundary by acquiescence in the western portion — an argument we do not reach because the circuit court did not rule on it. Bell v. Bershears, 351 Ark. 260, 268, 92 S.W.3d 32, 37 (2002). Eaton does not cross appeal. We agree with England’s first point: the circuit court clearly erred by splitting the disputed property with an arbitrary line not rooted in the evidence. Trice v. Trice, 91 Ark. App. 309, 316, 210 S.W.3d 147, 152 (2005).
Several undisputed facts frame this case. An old shop sits on the eastern portion of the disputed property. Soon after England bought his land, he began using the building. He made significant improvements and additions to the shop and even used it for his business for several years. England also maintained and improved a road that runs all the way through the western portion of the land to the shop on the eastern portion. He built and maintained a gravel parking lot located almost entirely in the western part. England also ran cattle on the western part and, at one point, fenced in some of that property.
Attempting to distinguish England’s use of the two portions, Eaton argues that she and her tenants used the first thirty feet of the road tó access a warehouse and buildings on her property. Eaton acknowledged, however, that she has never gone any farther down the road and did not know that there was a shop at the end of it. Eaton hired mowers to mow her land. She never told them, however, specifically where to mow nor did she go to the property to see where they had mowed. Eaton remembered making only two visits to the land during the twenty years that she had owned it.
For several years, England had given Eaton’s tenants (members of a motorcycle club) permission to park on the gravel lot — in the western portion of the disputed property — during their bike rally. After England had his land surveyed in 2006, when giving the tenants permission to park on the lot, he said that “Linda owns it anyway.”
After hearing all of this evidence, the circuit court issued a letter opinion. It concluded:
[England’s] conduct as it at least relates to a portion of the eastern part of the property, which included maintaining the roadway across the property for a period of time, using, maintaining and adding on to the shop building, and filling an area, constituted conduct demonstrating a subjective intent to possess the property adversely. . . . Although the evidence is clear [England] has on occasion possessed the remaining part of the property in question, the proof does not support his claim that such possession was notorious, distinct, exclusive and hostile ....
To prove the common law elements of adverse possession, England had to show that he possessed the disputed property continuously for more than seven years and that his possession was visible, notorious, distinct, exclusive, hostile, and with the intent to hold against Eaton, the true owner. White River Levee Dist. v. Reidhar, 76 Ark. App. 225, 228, 61 S.W.3d 235, 237 (2001). England openly occupied and maintained both the eastern and western portions of the disputed land. Only three facts of record distinguish the parties’ use of the two portions, all of which concern the exclusivity of England’s use of the western part: the thirty feet of the road by which Eaton and her tenants accessed their property; England’s allowing Eaton’s renters to park on the gravel lot in the western portion; and England’s statement about ownership.
England conceded Eaton’s use of the thirty-foot strip. The circuit court therefore correctly excluded that portion of land from the part that England adversely possessed. But the western portion left in Eaton’s possession extended well beyond the thirty-foot strip. The only other use of the western portion by Eaton was her renters’ use of the parking lot with England’s permission. Permissive use by others, however, does not destroy the exclusiveness of an adverse claimant’s possession. Anderson v. Holliday, 65 Ark. App. 165, 174, 986 S.W.2d 116, 120-21 (1999).
The Anderson case involved permissive use by the public. But as other states have recognized, the principle governs as to those holding record title too. Almond v. Anderegg, 276 Or. 1041, 557 P.2d 220 (1976); Hinds v. Slack, 293 Ala. 25, 299 So.2d 717 (1974). In Almond, for example, an adverse possessor had built a road, and the fact that he occasionally allowed the record owner to use the road did not destroy the adverse possessor’s exclusive possession. 276 Or. at 1047, 557 P.2d at 223. The general rule is that, “[o]ne may be in possession, for the purpose of acquiring land under the statutes of limitation, although he permits the public to pass over the land, or permits other persons to use the grass for pasturage, or not withstanding occasional trespasses by others made without intent to oust the claimant or assert a hostile claim against him . . 4 Tiffany on Real Property § 1141,736 (3d ed. 1975). The universe of “other persons” includes the tide holder because that person’s use — with permission — recognizes the claimant’s assertion of exclusive dominion over the property. There was no evidence that Eaton or her tenants intended to oust England by parking in the disputed strip or thereby asserted any right in this property. If Eaton or her tenants had used the western part of the disputed tract without England’s permission and because they thought that they were entitled to do so on the strength of Eaton’s title, then this would be a different case.
Nor is England’s statement about Eaton’s ownership conclusive. He made it, not early in his occupation of the disputed strip, but in the summer of 2006 after his survey had revealed Eaton’s record title. This admission weighs in the balance, but it does not outweigh the clear preponderance of all the evidence, which shows England’s various actions asserting exclusive dominion over the property for the preceding sixteen years.
The line at which the circuit court divided the eastern and western portions of the property was arbitrary. The court drew a north/south line, essentially dividing the disputed property in half. Though the court said that England’s activities differed on the eastern and western portions, the new property line has no adequate basis in those actions or the other evidence about the parties’ use. England bought his property in two parcels, and the circuit court simply extended the line between those parcels northward. This attempt to do equity was an arbitrary resolution of the parties’ dispute.
We are left with the firm conviction that the circuit court clearly erred. Trice, supra. Apart from the agreed joint use of the first thirty feet of the road, the court’s finding that England’s use of the western portion of the disputed tract was not exclusive is clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a). Deferring to the circuit court on credibility, and giving England’s admission its strongest possible weight, on the record as a whole this statement standing alone does not undermine England’s claim. Trice, 91 Ark. App. at 316-17, 210 S.W.3d at 152-53.
We affirm the circuit court’s decision as modified and remand. England adversely possessed the entire disputed tract except for the first thirty feet of the western portion. We remand for a survey and for the circuit court to enter an order thereafter accurately describing the line at which Eaton’s thirty-foot strip ends and England’s property now begins.
Affirmed as modified and remanded.
Pittman, C.J., Bird, and Heffley, JJ., agree.
Griffen and Baker, JJ., dissent.
Karen R. Baker, Judge.
The majority is left with a firm
conviction that the circuit court erred in its factual determination that possession of a portion of land was not exclusive to the adverse possessor. They reason that the adverse possessor permitted the record owner’s renters to use the disputed area; therefore, the record owner’s use of her own property did “not destroy the exclusiveness of the adverse claimant’s possession.” The case relied upon to support this contention is Anderson v. Holliday, 65 Ark. App. 165, 174, 986 S.W.2d 116, 120-21 (1999) (holding that the public’s use of the disputed road to access the adverse possessor’s business did not destroy the exclusiveness of the adverse possessor’s use). Neither this case, nor any other, supports the premise that an adverse possessor has any legal or equitable authority to grant permission to a record owner to use the property titled in his or her name. The majority’s reasoning, based upon this underlying assumption, is structurally unsound. Given our standard of review, the trial court’s decision should be affirmed.
This appeal is from an order by the Washington County Circuit Court, in a boundary dispute in which appellant Donald England, Sr., sought to quiet title in himself in a strip of land, and appellee Linda L. Eaton counterclaimed seeking ejectment and a writ of possession. The circuit court found that appellant England had adversely possessed the eastern portion of the strip but that appellee Eaton was entitled to possession of the western portion of the strip.
The strip of land in dispute is situated to the north of England’s land and is the southern-most part of Eaton’s land. In its letter opinion, which was incorporated into its final order, the trial court discussed the evidence and its findings. Included in its evaluation of the claim, the court relied upon the following facts and circumstances, which the evidence supports.
England acquired title to his land by warranty deed on June 30, 1990. Eaton acquired her property by warranty deed on December 5, 1986. England paid the ad valorem taxes on the property for a period in excess of seven years. England and the witnesses he called in support of his claim testified that from the time England acquired the property in 1990 he had used, maintained, and improved the property and road located within the disputed area. The road is an extension of Fayetteville’s 19th Street. England had fenced a portion of the area in dispute in 1992 and ran cattle on that part of the property for two or three years. The fence, which at one time crossed the roadway, was removed in 1999 although remnants of a fence are still present and appear along a part of the north line of the disputed area.
Evidence also established that England first acquired possession of his property in 1989 as a tenant before acquiring title to the real estate. A building known as the shop building was located in the disputed area of the property. England cleaned out the building, concluding this project in the 1990s; thereafter, he used it in conjunction with his trucking business until moving that enterprise to another location on his property in 2001 or 2002. He continued to use the shop and completed an addition to the structure in 2000 or 2001. England also offered evidence that he added fill dirt to an area of the property at issue located behind the shop building.
Appellee Eaton testified that she hired people to maintain her property, that this maintenance included a part of the property now claimed by England, and she paid for mowing part of the property north of England’s home. Eaton’s tenant, Collin Wilkins, testified that he and the members of his club that rent the structures located on Eaton’s property use the western part of the disputed area for the purpose of obtaining ingress and egress to their club building. In addition, he explained that he and members of the club parked vehicles on the disputed property and that England had commented on the parking of the vehicles in the disputed area with the statement, “Linda owns it anyway.”
Based upon this evidence, the trial court concluded that England mistakenly assumed that the boundary line was located on the north line of the disputed parcel of property; however, his conduct on the eastern part of the property constituted conduct demonstrating a subjective intent to possess the property adversely. His actions regarding the use of the property included maintaining the roadway across the property for a period of time, filling an area with dirt, and using, maintaining and adding on to the shop building. The trial court further found that the evidence established England’s adverse possession of this area for more than seven years and his possession was visible, notorious, distinct, exclusive, hostile, and with the requisite intent to hold the same. The court’s order incorporated a metes and bounds description consistent with a survey plat referenced by England.
The trial court, however, found that the proof did not support England’s claim to the remaining part of the property. In challenging the trial court’s finding regarding the western portion of the disputed area, England argues that the road he maintained extended from the western boundary and then continued to the shop building located in the eastern part of the claimed area. He focuses on evidence establishing that in 1990 when he first acquired ownership of his property that the road was merely a dirt path, but he created a true and functioning roadbed by adding six inches of slate and six inches of SB2 material and that his expense and effort created an entire roadway capable of supporting large vehicles such as semi-trailers. In connection with the roadway, England built a parking lot located between the home and the shop that lies almost entirely within the western portion of the disputed area. He also repeats the evidence regarding running cattle in the disputed area.
Regarding the road, Eaton responds that the use of the road was not exclusive to England. Eaton and her renters and visitors accessed the rental house and a warehouse by this road. In addition, the club used the western portion of the disputed area at least once a week. England admitted that his use of this area was not exclusive.
The appellate review of an equity matter requires this court to review the cases de novo on the record, and we do not reverse unless we determine that the trial court’s findings of fact were clearly erroneous. Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996). A finding of fact is clearly erroneous when, although there is evidence to support it, the appellate court is left with the definite and firm conviction that a mistake has been committed. Id. Discrepancies in the evidence are matters involving credibility for the trier of fact to resolve. Robertson v. Lees, 87 Ark. App. 172, 189 S.W.3d 463 (2004).
Adverse possession is governed by both common and statutory law. To prove the common-law elements of adverse possession, a claimant must show that he has been in possession of the property continuously for more' than seven years and that his possession has been visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. Trice v. Trice, 91 Ark. App. 309, 210 S.W.3d 147 (2005). It is ordinarily sufficient proof of adverse possession that the claimant’s acts of ownership are of such a nature as one would exercise over his own property and would not exercise over the land of another. Id. For possession to be adverse, it is necessary that it be hostile only in the sense that it is under a claim of right, title, or ownership as distinguished from possession in conformity with, recognition of, or subservience to, the superior right of the holder of title to the land. Fulkerson v. Van Buren, 60 Ark. App. 257, 961 S.W.2d 780 (1998). There is every presumption that possession of land is in subordination to the holder of the legal title. Id. The intention to hold adversely must be clear, distinct, and unequivocal. Id. Whether possession is adverse to the true owner is a question of fact. Id.
When evaluating a claim, the fact finder considers that a landowner has a duty to keep himself or herself informed as to the adverse occupancy of his or her property. See Welder v. Wiggs, 31 Ark. App. 163, 790 S.W.2d 913 (1990). A landowner’s knowledge that another person is in hostile possession of his land may consist of either actual knowledge or constructive notice. Id. Constructive notice is that which would reasonably indicate to the landowner, if he visits the premises and is a person of ordinary prudence, that another person is asserting a claim of ownership adverse to his own. Id. Fencing the disputed area is an act of ownership evidencing adverse possession. Boyd v. Roberts, 98 Ark. App. 385, 255 S.W.3d 895 (2007). The fact that the fence may have deteriorated does not necessarily mean that the property is not enclosed; the question is whether the enclosure is sufficient to put the record title owner on notice that his land is held under an adverse claim of ownership. Id.
The evidence supports the trial court’s decision on appellant’s adverse-possession claim regarding the western portion of the disputed area of the property. England’s acknowledgment that the use was not exclusive and the evidence supporting the use of the area by Eaton, her renters, visitors, and the club support the trial court’s determination that the use was not exclusive. Because every presumption that possession of the disputed land by appellant was in subordination to appellee as the holder of the legal title, see Fulkerson, supra, the evidence also supports the trial court’s decision finding that appellant failed to meet his burden of proof regarding his adverse possession claim for the western portion of the tract. In explaining its reasoning for its findings, the trial court quoted the case of Dickson v. Young, 79 Ark. App. 241, 85 S.W.3d 924 (2002):
The Court there held “the law of adverse possession and specifically the intent required, has often been misinterpreted and misapplied. The question of intent becomes one of nuance in many cases, with hair-splitting terminology deciding the fate of the possessor’s claim.”
The trial court’s awareness of the subtle complexities it faced in reaching its factual determinations led the court to physically inspect the disputed tract twice before making its findings. Ignoring the trial court’s first-hand knowledge and our deference to the trial court’s perceptions, the majority misinterprets and misapplies the Anderson terminology to confuse the concepts of permissive use and exclusivity. The majority’s reliance on the case of Anderson, supra, to support its claim that “mere permissive use will not destroy the exclusiveness of an adverse possessor’s claim” is an unacceptable contention. The relevant language from the case provides as follows:
According to appellants, Gib-Ark and appellees did not exclusively use the property because the public continually drove over the ditch in order to reach the Gibson’s store parking lot and, after June 1974, the parking lots of nearby stores. We disagree. The public’s use of land that is adversely possessed does not render the adverse possess- or’s use non-exclusive, so long as the public’s use and the adverse possessor’s use of the land are not the same. 121 3 Am. Jur. 2d Adverse Possession § 79 (1986); 2 C.J.S. Adverse Possession § 56 (1972).
Anderson, 65 Ark. App. at 173-74, 986 S.W.2d at 120-21.
The Anderson court concluded:
In the case at bar, appellees and their predecessors used the disputed property as an entrance to their property. There was no other business fronting on the property. Although the public traveled across the property and civic organizations used it from time to time, this usage was permissive, not possessory, and did not destroy the exclusiveness of appellees’ use.
Anderson, 65 Ark. App. at 174, 986 S.W.2d at 121.
In Anderson, the customers were merely using the access to the store, not asserting a right to possess the disputed access area. In no way could this use by customers to access a business be analogous to assert possession against the true owner by permitting the true owner to use his or her own property. No permission is required for a record owner to use his or her own property. No legal basis exists to support the contention that an adverse possessor can obtain the authority to grant permission allowing a record owner to use his or her own property.
Even if the majority engaged in hair-splitting terminology to try to distinguish the use of Eaton’s renters and visitors as somehow separate from Eaton, the argument would fail because the authority of her renters and visitors to use the property flowed through Eaton’s rights of ownership. Our supreme court recently expressed distinctions in the authority granted by landowners to possessors by license or lease:
There is a marked difference between a license and a lease. Under the lease, the right of possession against the world is given to the tenant, while a license creates no interest in the land, but is simply an authority or power to use in some specific way.
A license in respect to real estate is an authority to do a particular thing upon the land of another without possessing an estate therein. The test to determine whether an agreement for the use of real estate is a license or a lease is whether the contract gives exclusive possession as against all the world, including the owner, in which case it is a lease, or whether it merely confers a privilege to occupy under the owner, in which case it is a license. Id. at 1046 (citations omitted). However, “[a] license not being assignable, an attempted assignment by the licensee of his rights thereunder has been regarded as bringing the license to an end[.]” Tiffany Real Property, Sec. 837 (2004).
El Paso Production Co. v. Blanchard, 371 Ark. 634, 644-45, 269 S.W.3d 362, 371 (2007).
Regardless of whether Eaton’s renters and visitors were licensees or lessees, their authority to be on the property owned by Eaton flowed through Eaton to them. Their permissive use of the property could only legally come from the record landowner. Accordingly, the trial court did not err in finding that England had failed to prove his exclusive use of the disputed tract, and the trial court should be affirmed.
We should also reject England’s argument that the parties acquiesced to the road as the boundary. Whenever adjoining landowners tacitly accept a fence line or other monument as the visible evidence of their dividing line and apparently consent to that line, it becomes a boundary by acquiescence. Clark v. Casebier, 92 Ark. App. 472, 215 S.W.3d 684 (2005). A boundary line by acquiescence may be inferred from the landowners’ conduct over many years so as to imply the existence of an agreement about the location of the boundary line. Id. This is a question of fact. Id. Here, there was clearly a dispute and there was simply no evidence of a tacit recognition by the landowners that the road was the boundary. In addition, England’s comment that the western area of the disputed tract belonged to Eaton directly contradicts the existence of the fence as a recognized boundary agreed upon by the parties.
Accordingly, we should find no error and affirm. I am authorized to say that Judge Griffen joins in this dissent.
Griffen, J., joins. | [
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Karen R. Baker, Judge.
James Nash has appealed from an order awarding summary judgment to Landmark Storage, LLC, in Nash’s negligence lawsuit. We affirm.
In the fall of 2005, Nash rented a storage unit from Landmark. In December of that year, he discovered that the unit had been burglarized and some items had been stolen. Nash sued Landmark for negligence in failing to maintain a secure facility. He also alleged that Landmark was negligent in posting a sign on its gate that said “Premises Monitored by Video Surveillance” when there was no such surveillance.
Landmark moved for summary judgment, attaching copies of Nash’s deposition and the rental agreement, which contained the following exculpatory provision:
Tenant accepts the premises as suitable for the purpose for which they are rented and waives all defects, if any, therein. Landlord shall not be responsible to Tenant, his invitees, agents or employees for damage to person or property caused by negligence, water, fire, theft, windstorm, flood, vandalism, defects in the premises or same being or becoming out of repair, or for any casualty or other cause whatever and Tenant agrees to indemnify and to hold Landlord harmless of and from any such damage, loss, cost or expense. Tenant assumes responsibility of fire and extended insurance coverage on property placed in the storage space hereby rented. ALL PROPERTY KEPT, STORED OR MAINTAINED ON THE PREMISES BY TENANT SHALL BE AT TENANT’S SOLE RISK.
Landmark also attached to its motion the affidavit of Landmark’s owner, who stated that the sign was posted on the front gate for the sole purpose of deterring theft. Landmark noted that, in Nash’s deposition, he acknowledged that, according to the agreement, he assumed the risk of theft. It also argued that, under Arkansas law, a landlord does not owe a duty to protect a tenant from the criminal acts of a third party and that it had not assumed such a duty. In response, Nash asserted that, before he rented the facility, he had relied upon Landmark’s sign representing that there would be monitored video surveillance and that he had mentioned the sign to Landmark’s agent, who was silent. He argued that the agent’s silence, coupled with the sign’s false advertising, required the application of the doctrine of estoppel in pais to prevent Landmark from denying that it had assumed a legal duty.
In his deposition, Nash testified about his entering into this agreement as follows:
A. The first time I rented the storage unit, there, and that’s what gave me the security in order to rent another one there again.
Q. Great. And when you first saw that in August ’04 when you rented the first unit there, did you ask anybody about that?
A. No, I did not.
Q. Why not?
A. I don’t recall. I don’t remember. I had asked somebody about if there had ever been any problems there, and they said, no, we have never had any problems, but I didn’t ask about the video surveillance.
Q. What about the second time when you rented the storage facility, did you ask anybody about the video surveillance?
A. No.
Q. Why not?
A. I just didn’t, because — I just didn’t because I seen the sign and I trusted that, you know, it was video monitored, and I didn’t have any trouble there before so I felt that my things were going to be safe in that unit.
Q. When you signed the contract with Landmark Storage either in August ’04 or May ’05, did you tell the person that you were signing the contract with that you were relying on that sign out there on the gate to provide video surveillance on the condition of you signing this document?
A. I recall mentioning something about it.
Q. What did you say?
A. I don’t remember. I recall mentioning something about it. The first time there was a girl there, the second time there was a guy there that I, you know, rented it from, so I don’t remember any kind of conversation.
Q. And you don’t recall what it was you said at all?
A. No, except maybe I noticed, you know, on the sign that, you know, you had video surveillance, and, you, know, I hope everything is going to be okay.
Q. And what did they say?
A. They said, we’ve never had any problem.
Q. They didn’t tell you that there was in fact video surveillance?
A. No.
Q. And they didn’t tell you that there wasn’t?
A. They — no.
At the conclusion of the hearing on the motion, the circuit court stated that the posting of the sign was not enough to impose a duty upon Landmark to conduct video surveillance. It entered summary judgment for Landmark, from which Nash pursued this appeal.
Summary judgment is a remedy that should be granted only when there are no genuine issues of fact to litigate and when the case can be decided as a matter of law. Denton v. Pennington, 82 Ark. App. 179, 119 S.W.3d 519 (2003). 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. In other words, when the facts are not at issue but possible inferences therefrom are, we will consider whether those inferences can be reasonably drawn from the undisputed facts and whether reasonable minds might differ on those hypotheses. Thomas v. Stewart, 347 Ark. 33, 60 S.W.3d 415 (2001).
Nash argues that issues of material fact regarding Landmark’s negligence remain. He asserts that he rented the storage unit with Landmark, without investigating other options, in reliance on the sign’s message and the agent’s failure to correct his belief that video surveillance was provided. Thus, he argues, the doctrine of estop-pel in pais should be applied to prevent Landmark from asserting that it owed him no duty.
The law of negligence requires as essential elements that the plaintiff show that a duty was owed and that the duty was breached. Lacy v. Flake & Kelley Mgmt., Inc., 366 Ark. 365, 235 S.W.3d 894 (2006). The issue of whether a duty exists is always a question of law, not to be decided by a trier of fact. Id. If no duty of care is owed, summary judgment is appropriate. Id. Arkansas follows the well-settled rule that a landlord does not owe a duty to protect a tenant from criminal acts. Id. Only an express agreement or assumption of duty by conduct can remove a landlord from the general rule of non-liability. Id.; accord Hall v. Rental Mgmt., Inc., 323 Ark. 143, 913 S.W.2d 293 (1996); Bartley v. Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994).
The controlling question, therefore, is whether Landmark removed itself from the general rule by assuming a duty to protect Nash’s property from the criminal acts of a third party. Clearly, the lease did not give rise to a duty; in fact, it expressly disclaimed such a responsibility. The next question is whether Landmark’s posting of this sign and its agent’s silence about the posting amounted to an assumption of duty by conduct. See Lacy v. Flake & Kelley Mgmt., Inc., supra. According to Nash, the doctrine of equitable estoppel requires us to hold that they did.
An “estoppel in pais” may arise from a transaction in which a party has led another into the belief of a particular state of facts by conduct of culpable negligence which has been the proximate cause of leading and has led such other party to act by mistake on such belief to his prejudice. Baker-McGrew Co. v. Union Seed & Fertilizer Co., 125 Ark. 146, 188 S.W. 571 (1916). Our court recently discussed the application of this doctrine:
Estoppel in pais is the doctrine by which a person may be precluded by his acts or conduct, or by failure to act or speak under circumstances where he should do so, from asserting a right which he otherwise would have had. The elements of equitable estoppel are these: (1) the party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting estoppel has a right to believe the other party so intended; (3) the party asserting estoppel must be ignorant of the facts; and (4) the party asserting estoppel must rely on the other’s conduct to his detriment. King v. Powell, 85 Ark. App. 212, 148 S.W.3d 792 (2004). A party who by his acts, declarations, or admissions, or by his failure to act or speak under circumstances where he should do so, either with design or willful disregard of others, induces or misleads another to conduct or dealings which he would not have entered upon, but for such misleading influence, will not be allowed, because of estoppel, afterward to assert his right to the detriment of the person so misled. Id. However, there is no estoppel in the absence of a change of position in reasonable rebanee. Bharodia v. Pledger, 340 Ark. 547, 11 S.W.3d 540 (2000). Whether there has been actual rebanee and whether it was reasonable are usuaby questions for the trier of fact. Kearney v. Shelter Ins. Co., 71 Ark. App. 302, 29 S.W.3d 747 (2000).
Sterne, Agee & Leach, Inc. v. Way, 101 Ark. App. 23, 270 S.W.3d 369 (2007).
Though the doctrine had its beginnings in equity, we have long held that estoppel in pais may be set up in actions at law as well as in suits in equity. Lavaca Sch. Dist. No. 3 v. Charleston Sch. Dist. No. 9, 304 Ark. 104, 800 S.W.2d 703 (1990); Moorehead v. Universal C.I.T. Credit Corp., 230 Ark. 896, 327 S.W.2d 385 (1959). A person who intentionally or by culpable negligence induces another to act on his representations will be estopped from denying their truth. Callahan v. Farm Equip., Inc., 225 Ark. 547, 283 S.W.2d 692 (1955).
We need not decide whether, under the undisputed facts of this case, the doctrine of equitable estoppel could be applied to prevent Landmark from denying that it assumed a duty to Nash. Even if such a duty had been created by Landmark’s conduct, the parties’ contract unambiguously excluded any liability on the part of Landmark for any type of property loss, regardless ofits cause. A contract’s language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one equally reasonable interpretation. Lynn v. Wal-Mart Stores, Inc., 102 Ark. App. 65, 280 S.W.3d 574 (2008). This contract met neither requirement. Because this agreement’s exculpatory clause was unambiguous, its construction was a question of law for the court, and no question of fact was presented. Vogelgesang v. U.S. Bank, N.A., 92 Ark. App. 116, 211 S.W.3d 575 (2005). Nash further argues that he was fraudulently induced to enter into the contract by the sign’s assurances of video surveillance. It is clear to us that, under the facts of this case, no one could reasonably infer that Landmark had any liability to Nash for losses resulting from theft under either a contract or tort theory. Therefore, summary judgment for Landmark was appropriate.
Affirmed.
Gladwin and Griffen, JJ., agree.
An exculpatory provision “is one where a party seeks to absolve himself in advance of the consequences of his own negligence.” Jordan v. Diamond Equip. & Supply Co., 362 Ark. 142, 148, 207 S.W.3d 525, 530 (2005). Exculpatory provisions are not favored by the law due to the strong public policy of encouraging the exercise of care. See Jordan, supra. However, exculpatory provisions are not invalid per se. See id.; Ingersoll-Rand Co. v. El Dorado Chem. Co., 373 Ark. 226, 283 S.W.3d 191 (2008). While Mr. Nash argues that estoppel in pais applies in determining appellee’s legal duty to Mr. Nash, he does not assert that the estoppel argument applies to the application of the contract provision.
Nash also contends that the parol-evidence rule did not apply because he alleged fraud in the inducement of the contract. The circuit court, however, did not apply the parol-evidence rule, because it considered his testimony about his discussions with Landmark’s agent. | [
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Josephine Linker Hart, Judge.
A jury found appellant, Adrian Weisenfels, guilty of driving while intoxicated. On appeal, he first contends that the circuit court abused its discretion in refusing to grant a mistrial when a police officer testifying for the State attempted to quantify appellant’s blood-alcohol level based on appellant’s performance of the horizontal gaze nystagmus (HGN) test. Second, he contends that the circuit court abused its discretion in giving a jury instruction on expert-witness testimony when no expert testified at trial. We affirm.
At the jury trial, the State presented the testimony of Deputy Steven Walker of the Washington County Sheriffs Department and Officer Mike Biddle of the Elkins Police Department. Walker testified that on September 23, 2006, he observed the car driven by appellant “speeding up, slowing down, every time the vehicle would speed up he weaved in his lane a little more, a time or at least one time I noticed that he crossed the center line, in my report I put two feet.” He also testified that appellant at one point was driving thirty-five miles per hour in a fifty-five mile per hour zone and that this was significant because it was a “good indicator that it’s possibly a DWI driver.” He noted that after turning on his emergency lights, appellant drove for approximately two hundred yards; that rather than pulling off onto the shoulder, appellant stopped his vehicle straddling the fog line; that when appellant exited the car, he stumbled getting out and was unsteady on his feet; that the odor of intoxicants was coming from the inside of the car; and that appellant was asked twice for proof of insurance. When asked, appellant stated that he had not drunk anything in about two hours.
Biddle testified that he arrived at the scene and had appellant perform various field-sobriety tests, including the HGN test. Biddle noted that there were six “clues” in the test. Following Biddle’s testimony regarding appellant’s performance on this test, the State asked whether there was “a pass/fail or is there a scoring on this test,” and Biddle replied, “Yes, there’s a pass/fail, four or more of those symptoms indicate a blood-alcohol content of zero point zero eight hundreds for weigh — .” Counsel for appellant interrupted and moved for a mistrial, arguing that this “was not proper testimony,” that Biddle “was asked about clues, he wasn’t asked about blood-alcohol percent, that’s absolutely prohibited,” and that “there’s a case right on point on that and he cannot testify to any percentage of what the clues indicate the percentage of blood[-alcohol] content.” The circuit court stated that the “response was not responsive to the question and if you’re requesting an admonition to the jury I will certainly give that.” Counsel again moved for a mistrial, which the court denied, and appellant requested an admonition to the jury. The court then instructed the jury to “disregard the last response of the witness, it was not responsive to the question.” Biddle then testified that in grading appellant’s performance, he observed six “clues.”
Biddle also had appellant perform the walk-and-turn test, showing six of eight clues, and the one-leg stand test, showing two of four clues. He also noted that appellant stumbled getting out of his car and had trouble standing in one place; his eyes were red, glassy, bloodshot, and watery; his breath smelled of intoxicants; and his speech was slurred. Appellant admitted that he had two drinks earlier in the day. Biddle found beer and an almost empty vodka bottle in the trunk. Biddle arrested appellant for driving while intoxicated. Appellant was unable to complete a BAC Datamaster test at the police department.
Citing Middleton v. State, 29 Ark. App. 83, 780 S.W.2d 581 (1989), appellant argues that Biddle’s testimony manifestly prejudiced him because it provided the jury with “a gauge by which to quantify the level of alcohol” by using the HGN test when there were no results from any type of chemical testing. In Middleton, a police officer testified that appellant’s performance on the HGN test “indicated an'alcohol rating of .15 or .16.” Id. at 87, 780 S.W.2d at 583. The Middleton court noted that a jury instruction was given defining the offense of driving while intoxicated as being in control of a vehicle with an alcohol level of. 10 or above, and the only evidence of the defendant’s alcohol level was the officer’s testimony based on the HGN test. The court concluded that any probative value that the HGN test results may have had to show an alcohol level in excess of .10 was substantially outweighed by the potential for unfair prejudice.
In this case, the question on appeal is whether the circuit court abused its discretion in refusing to grant a mistrial. A mistrial is an extreme remedy that should only be granted when there has been an error so prejudicial that justice could not be served by continuing the trial. Brown v. State, 38 Ark. App. 18, 827 S.W.2d 174 (1992). Because of the circuit court’s superior position to determine the possibility of prejudice, the court is vested with considerable discretion in acting on a motion for a mistrial, and the court’s decision will not be reversed absent an abuse of discretion. Id.
The driving-while-intoxicated statute provides that “[i]t is unlawful. . . for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.” Ark. Code Ann. § 5-65-103 (a) (Repl. 2005). The term “intoxicated” is defined as “influenced or affected by the ingestion of alcohol ... to such a degree that the driver’s reactions, motor skills, and judgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger of physical injury or death to himself and other motorists or pedestrians.” Ark. Code Ann. § 5-62-102(2) (Repl. 2005). Alternatively, “[i]t is unlawful. . . for any person to operate or be in actual physical control of a motor vehicle if at that time the alcohol concentration in the person’s breath or blood was eight-hundredths (0.08) or more.” Ark. Code Ann. § 5-65-103(b) (Repl. 2005).
Here, the officer’s answer was not responsive to the question. Moreover, the officer did not testify that appellant’s blood-alcohol level meant that appellant failed the HGN test. Rather, the officer testified that the clues indicated a certain blood-alcohol level. Also, the officer did not suggest that based on the blood-alcohol content, appellant was intoxicated for the purposes of subsection (a), or was guilty of driving while intoxicated for the purposes of subsection (b). Furthermore, in contrast to Middleton, there is nothing in the record indicating that the jury was instructed on whether appellant could be found guilty of driving while intoxicated based on his blood-alcohol content under subsection (b), and the jury instructions were not made part of the record. The only jury instruction the State discussed during closing argument involved the definition of “intoxicated,” which goes to a finding of guilt under subsection (a).
Moreover, the circuit court admonished the jury to disregard the officer’s remark, and an admonishment may be sufficient to cure prejudice. See Brown, supra. In Brown, an officer was asked what he meant when he stated that the defendant appeared “very intoxicated,” and he replied “.15, .14, .15.” The Brown court noted that there was no reference to blood-alcohol content and no attempt to bolster the officer’s conclusion by linking it to the results of a field-sobriety test, and the court concluded that the jury admonition to disregard the testimony cured any resulting prejudice. In contrast to Brown, the officer’s testimony here mentioned blood-alcohol content and linked it to the HGN test. But given that the officer’s testimony did not equate appellant’s blood-alcohol level with failing the HGN test, or with a finding that appellant was intoxicated, or with the conclusion that he was guilty of driving while intoxicated; that the record does not reflect that the circuit court instructed the jury that it could find appellant guilty of driving while intoxicated based on his blood-alcohol content; and that the circuit court instructed the jury to disregard the officer’s testimony, the circuit court did not abuse its discretion in refusing to grant a mistrial.
Also at trial, appellant’s counsel objected to the giving of an instruction on expert-witness testimony, arguing that there was “no testimony from an expert in this case.” The State countered, arguing that “to the extent the officers have testified based on their training and experience that they had opinions on whether or not the guy was intoxicated per the statute as to the danger, I think that they qualify as expert under that statute.” The circuit court gave the instruction.
On appeal, appellant argues that the circuit court erred giving the jury an expert-witness instruction, because there was no foundation of essential facts qualifying the police officers as experts and there was no evidence presented that could not be understood or comprehended by the average juror. He also asserts that he was prejudiced because the instruction “only served to unfairly bolster the credibility of the officers beyond that of a simple lay opinion.” The issue on appeal, however, is whether the court abused its discretion in giving the expert-witness instruction.
Arkansas Rule of Evidence 702 provides that “[i]f 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.” If some reasonable basis exists from which it can be said the witness has knowledge of the subject beyond that of ordinary knowledge, the evidence is admissible as expert testimony. Mace v. State, 328 Ark. 536, 944 S.W.2d 830 (1997). Whether a witness qualifies as an expert is a matter within the circuit court’s discretion, and that decision will not be reversed absent an abuse of that discretion. Id.
Walker, who stopped appellant’s car, testified that he had been a certified police officer since September 2001, and after becoming certified, had been employed in law enforcement. He also testified that he went to “standardized field sobriety school” and was a “standardized field sobriety instructor” and a drug recognition expert. He further testified that he had made “about two hundred” stops involving persons driving while intoxicated. He testified that he pulled appellant’s vehicle over because he “was in fear of other traffic on the road, he might be a danger to them or himself.” He further opined that after observing appellant’s driving and appellant’s conduct after the stop, appellant was a danger to himself or others on the roadway.
Biddle, who conducted the field-sobriety tests, testified that he was a certified law enforcement officer, attended the law enforcement training academy and graduated in 1999, had attended a class on standardized field sobriety in 2006, attended a class on the operation of the BAC Datamaster machine and was a licensed operator of the machine, and had made approximately fifty traffic stops involving persons operating a vehicle while intoxicated by alcohol. Biddle concluded that, after considering the results of the field-sobriety tests, his contact with appellant, and appellant’s attempts to take the Datamaster test, appellant “was a danger not only to himself but to his passengers and other people on the roadway” and could not control a vehicle.
Both Walker and Biddle testified regarding their respective training regarding field-sobriety tests and extensive experience in making traffic stops involving drivers who were driving while intoxicated. The State had to prove that appellant was intoxicated, which required proof that appellant presented a clear and substantial danger of physical injury or death to himself and other motorists or pedestrians. Both officers concluded that appellant was a danger to himself and others on the roadway. There was a reasonable basis from which it can be said the officers had knowledge beyond that of ordinary knowledge, and the officers’ specialized training and knowledge aided the jury in determining this fact in issue, that is, whether appellant was a danger to himself and others. Accordingly, the circuit court did not abuse its discretion in giving the expert-witness instruction, as their testimony was admissible as expert testimony. See Brown, supra (holding that an officer’s testimony regarding his training that dealt in depth with the HGN test was sufficient to establish him as an expert witness qualified to discuss the details and results of the test).
Affirmed.
Vaught and Heffley, JJ., agree. | [
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D.P. Marshall Jr., Judge.
Otha Tackett leased his salvage yard in 2002 to Doyle, Tommy, and Bruce Meadors for $800.00 a month for ten years. The lease provided that:
The terms and provisions of this lease shall inure to the benefit of the heirs and devises of the parties and, in particular, it is agreed that in the event of lessors death, the moneys due and payable hereunder shall be paid to the lessors wife, Judeane Tackett.
This appeal is a dispute between Otha’s estate and Judean’s estate about the enforceability of this contract provision.
I.
Family circumstances frame the dispute. Both Otha and Judean had been married before and had children from those marriages. The year before they married each other in 1975, Otha executed a will leaving his entire estate to his four children. Otha and Judean made a prenuptial agreement, each renouncing any claim to the property that the other brought into their marriage. Their attached property schedules reflect that, while Otha owned several tracts of real estate and had money in the bank, Judean owned nothing.
Starting in 2002, the Meadors paid the monthly rent to Otha for the salvage yard. Otha died in July 2006. The Meadors then started paying Judean the rent. Judean and Otha’s estate — being administered by one of his children for the benefit of herself and her siblings pursuant to the pre-marriage will — disagreed about who was entitled to the rent paid after Otha’s death. Starting in December 2006, the rent went into the registry of the circuit court. Then Judean died in March 2007. Her estate took her place in this litigation.
The circuit court agreed with Judean’s estate that “the provision is clear. It is directing Meadors, Mr. Tackett says, if I die you pay that money to my spouse. There is not any way to interpret it other than that.” The court ruled further that “that provision goes to the estate ofMrs. Tackett, now, she’s deceased.” The court eventually filed an order reflecting its bench ruling. Otha’s estate appeals. We review the question of law presented in this probate case de novo. Devine v. Martens, 371 Ark. 60, 65, 263 S.W.3d 515, 520 (2007).
II.
We agree with the circuit court that the lease is clear about Otha’s intentions for any rent due after his death. We must reverse nonetheless because precedent makes this clear provision unenforceable. E.g., Coley v. English, 235 Ark. 215, 357 S.W.2d 529 (1962); Levine v. Newlander, 235 Ark. 942, 362 S.W.2d 698 (1962); Baugh v. Howze, 211 Ark. 222, 199 S.W.2d 940 (1947); Ragan v. Hill, 72 Ark. 307, 80 S.W. 150 (1904). These cases arise on varying facts: Ragan involved a note; Baugh involved cash; Coley involved a real-estate contract; and Levine involved a deed. But in each case, like Otha, the owner intended and attempted to make an inter vivos gift of a future interest. In each case, that effort failed as a matter oflaw because no present interest was conveyed. Otha’s attempt in this lease to provide Judean monthly income after his death likewise fails.
There is reason behind the rule. To avoid the opportunities for fraud and evidentiary difficulties, a gift inter vivos must be consummated by actual delivery to the donee, with the donor releasing all dominion in the property beyond recall. Baugh, 211 Ark. at 225-28, 199 S.W.2d at 941-43. Alternatively, to give a future interest, the owner must make a valid will with all testamentary formalities, thereby conveying the interest at the owner’s death. Coley, 235 Ark. at 217-18, 357 S.W.2d at 531. In this case, Otha neither consummated an inter vivos gift nor followed the testamentary formalities necessary to amend his will by codicil.
Coley is the closest precedent. Ann Coley sold real estate on terms. She and the buyers agreed that, if she died before they paid the entire purchase price, then they should pay her husband’s nephew the balance in her stead. 235 Ark. at 215, 357 S.W.2d at 529-30. As Judean’s estate does in this case, the nephew contended that he was a third-party beneficiary and the fact that his benefit under the contract was postponed until the death of one party to the contract should not make any legal difference. 235 Ark. at 216, 357 S.W.2d at 530.
The supreme court squarely rejected the nephew’s argument. The court’s holding binds us, and its words explain the decision in Coley and in this case.
In the case before us now, [Otha] retained full control over the contract and, had [he] lived, [he] would have been the sole beneficiary or recipient of the full consideration due on the contract. At no point does [Judean] show an actual or constmctive intent on the part of [Otha] to relinquish such control of the contract as would cause a presumption that [Judean] was entitled to anything until [Otha’s] death. The terms of the contract clearly state that [Judean] was to receive nothing until the death of [Otha], and then only such amount (if any) as might be remaining due upon the contract. This provision of the contract clearly shows an intent on the part of [Otha] to make a testamentary disposition of property contrary to the solemn requirements of a will. From the clear language of the contract there is no inference of an intent on the part of [Otha] to convey a present interest in the contract to [Judean] as would constitute a valid gift inter vivos.
235 Ark. at 217-18, 357 S.W.2d at 531.
Pointing to more recent Arkansas cases, Judean’s estate argues that we should affirm the circuit court’s decision. These cases, however, arise in areas where statutes have supplanted the common law. A depositor can give a current or future interest in her bank account by designating a joint tenant or by making a POD — “pay on death” — designation. Baker v. Bank of Northeast Arkansas, 271 Ark. 948, 950-52, 611 S.W.2d 783, 784-85 (Ark. App. 1981); Ark. Code Ann. §§ 23-32-207 & 23-37-502 (Repl. 2000). If a joint tenancy is created, the gift has been completed; if a POD designation is made, the gift would not be valid under the common law but is valid under the statute. Likewise, a person entitled to insurance proceeds may, instead of taking a lump sum, accept periodic payments and designate another individual to receive any balance unpaid at the recipient’s death. Wasson v. Pyron, 242 Ark. 518, 520-21, 414 S.W.2d 391, 392-93 (1967); Ark. Code Ann. § 23-81-116 (Repl. 2004). These statute-based precedents do not undermine Coley and similar cases.
Judean’s estate also argues from out-of-state decisions and learned treatises that support enforcing the disputed provision of the salvage yard lease. E.g., Roberts v. Ellis, 229 Or. 609, 368 P.2d 342 (1962); 13 Williston on Contracts §§ 37:7-37:10 (4th ed. 2000). The Restatement (Second) of Contracts § 302(l)(b) (1981) adds further support. Under these authorities, Judean was Otha’s intended third-party beneficiary of rent due after his death, and the law should recognize and enforce her right notwithstanding the postponed vesting. We recognize the wisdom of this law. But we are bound by Coley and like precedents. Only our supreme court can say whether the now-ready availability of POD designations, insurance products, and other legally effective transfers of future and contingent interests in property has so eroded the line of cases exemplified by Coley that our common law has changed.
Otha’s estate makes other arguments for reversal, but we do not reach them because we reverse and remand on the authority of Coley.
Heffley and Baker, JJ., agree.
Though Otha’s estate cast its main argument for reversal in its opening brief in terms of a failed assignment, the substance of that argument was that Otha made no immediate and complete delivery to Judean of the right to rent from the lease. Judean’s estate recognized the core issue ■— the enforceability of the right to any rent due after Otha’s death. Judean’s estate responded with a full counter-argument about inter vivos gifts and third-party beneficiaries, citing Coley and other relevant authorities. And Otha’s estate replied on those terms. The doctrinal labels are not controlling; the substance of the argument made is. “We must think things not words[.]” OHver Wendell Holmes Jr., Law in Science and Science in Law, 12 Harv. L. Rev. 443,460 (1899). All the parties having fully briefed the dispositive issue, we may and do decide it. Compare Rymor Builders, Inc. v. Tanglewood Plumbing Co., 100 Ark. App. 141, 145-46, 265 S.W.3d 151, 153-54 (2007). | [
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Per Curiam.
John Joplin, a full-time, state-salaried pubriam. in Sebastian County, was appointed by the trial court to represent appellant, Carl Johnson, an indigent defendant, on the charge of murder in the first degree. Following a trial held on November 15, 2002, appellant was found guilty and sentenced to serve forty years in the Arkansas Department of Correction and to pay a fine of $15,000. A timely notice of appeal was filed with the circuit clerk, pursuant to Ark. R. App. P. — Crim. 10, and the record was timely lodged in this court.
Mr. Joplin now asks to be relieved as counsel for appellant in this criminal appeal, based upon the cases of Rushing v. State, 340 Ark. 84, 8 S.W.484 (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, the law was changed by the General Assembly. Act 1370 of 2001 provides in part: “[PJersons 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 as Ark. Code Ann. § 19-4-1604(b)(2)(B) (Supp. 2001).
Mr. Joplin’s motion states that he is provided with a full-time, state-funded secretary. Accordingly, we grant his motion to withdraw as attorney. Mr. Tim Cullen will be substituted as attorney for appellant in this matter. The Clerk will establish a new briefing schedule. | [
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PAUL E. DANIELSON, Justice.
liAppellant State Farm Automobile Insurance Company appeals the order of the Sebastian County Circuit Court awarding a statutory penalty and attorney’s fees to appellee Eda Stamps. State Farm argues that the circuit court erred by awarding a statutory penalty and attorney’s fees to Stamps because the amount she recovered at trial was not within twenty percent of the amount she demanded or that was sought in her suit as required by Arkansas Code Annotated § 23 — 79—208(d)(1) (Supp. 2009). For the reasons set forth below, we affirm the order of the circuit court.
Stamps was struck by an automobile driven by a drunk driver in June of 2000. The drunk driver had a liability insurance policy with State Farm that had a policy limit of | ⅞$50,000. State Farm paid the policy limit of $50,000 to Stamps. However, at the time of the accident, Stamps also had an insurance policy with State Farm that included underinsured motor-vehicle coverage. The policy limits on Stamps’s policy were $250,000. Stamps alleged that she suffered damages beyond the $50,000 she had been paid and demanded that State Farm also pay the policy limits of her policy. That claim was denied.
On May 15, 2006, Eda and her husband, Gary, filed suit against State Farm seeking underinsured motor-vehicle coverage. The complaint prayed for an amount that exceeded federal jurisdictional limits of $75,000, costs, prejudgment interest, post-judgment interest, statutory penalties, and attorney’s fees pursuant to Arkansas Code Annotated § 23-79-208. The amended complaint prayed for the same damages. However, on October 15, 2007, the Stamps-es filed an “amended demand,” which sought satisfaction under the underinsured policy of damages in the amount of $150,000 and, pursuant to Ark.Code Ann. § 23-79-208, twelve percent of penalty, reasonable attorney’s fees, costs, prejudgment interest, and postjudgment interest, should they prevail to the extent of eighty percent of their demand. State Farm did not accept this demand and trial began on October 22, 2007.
At trial, the parties stipulated that the Stampses’ policy of underinsured motor-vehicle coverage had limits of $250,000. In opening statements, counsel for the Stampses advised the jury that the Stampses did receive policy limits of $50,000 from the drunk driver, but stated that the damage to the Stampses exceeded $50,000. Counsel informed the jury that Gary would testify that “[w]e want [State Farm] to pay us that $250,000,” and continued his | ¡¡opening statement with “[so] that’s what State Farm is now looking to argue, is the damages-how much of that 250 they’re going to have to turn loose of. That’s what this case is about. How much of those damages do I have to write a check for....” Gary did testify at trial that he did not believe that $250,000 would make his wife whole, but that “since that’s the policy limits, ... that’s all I would expect.”
The jury returned a verdict in favor of Eda Stamps in the amount of $135,000. At a posttrial hearing, Stamps’s counsel argued that Stamps was entitled to the twelve-percent penalty and attorney’s fees pursuant to section 23-79-208(d) because the $135,000 verdict was within twenty percent of the $150,000 demand. State Farm argued that, during trial, the Stampses had actually demanded $250,000, regardless of what the written complaints sought and, therefore, Stamps was not entitled to penalties and attorney’s fees because her recovery was not within twenty percent of a $250,000 demand. Stamps’s counsel responded by arguing that there was no such demand of $250,000 and that, in trial, the jury knew the policy limits were $250,000 because it was a stipulated fact between the parties. He claimed that the complaints only asked for an amount in excess of $75,000 and that the only later demand was for $150,000.
The circuit court entered an order awarding the twelve-percent penalty and attorney’s fees to Stamps, stating that the statutory damages “are available under section 23-79-208 if the | ¿amount recovered is within twenty percent of the amount demanded or which is sought in the suit.” The court acknowledged State Farm’s argument that Stamps’s counsel had demanded $250,000 during trial and was now bound to that figure as the demand, but did not agree. In its order, the circuit court specifically found:
... Closing argument contains nothing which, in the Court’s opinion, rises to anything close to a demand for $250, 000.00. Taken as a whole, those statements made by counsel at the opening statement stage of the trial do not rise to such a level as to undo the history of the case, which clearly reveals a $150, 000.00 demand.
In the Court’s opinion, Plaintiffs did not do what was forbidden — manipulate the case to make such an award certain. In that regard, this case appears to the Court to be clearly distinguishable from the cases cited in Defendant’s brief. On the other hand, Plaintiffs were not bound to roll over and play dead at trial just because they had made a demand. To rule otherwise would remove any incentive for defendants to engage in settlement in such cases. The motion as it relates to the twelve percent (12%) damages assessment pursuant to Ark. Code Ann. 23-79-208 is granted.
(Emphasis added.)
State Farm filed a timely notice of appeal, arguing that the circuit court erred in awarding a statutory penalty and attorney’s fees pursuant to section 23-79-208(d)(1). The court of appeals affirmed the order of the circuit court. See State Farm Auto. Ins. Co. v. Stamps, 104 Ark. App. 308, 292 S.W.3d 833 (2009). State Farm then filed a petition for review in this court, which we granted on May 28, 2009.
State Farm argues that, pursuant to section 23-79-208(d), Eda was not entitled to the statutory penalty and attorney’s fees because her recovery of $135,000 was not twenty percent of $250,000, which State Farm claims was the “amount demanded” or the amount which was “sought in the suit.” Stamps avers that the circuit court was correct in finding that her only |sdemand was for $150,000 and, therefore, her recovery of $135,000 did fall within the twenty percent required by the statute.
The circuit court found in its order that the only demand made by Stamps was the $150,000 demand. This court will affirm the circuit court’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. See PH, LLC v. City of Conway, 2009 Ark. 504, 344 S.W.3d 660. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court based on the entire evidence is left with a firm conviction that a mistake has been committed; disputed facts and determinations of credibility are within the province of the fact-finder. See id.
Arkansas Code Annotated § 23-79-208(d)(l) provides, in pertinent part:
(d)(1) Recovery of less than the amount demanded by the person entitled to recover under the policy shall not defeat the right to the twelve percent (12%) damages and attorney’s fees provided for in this section if the amount recovered for the loss is within twenty percent (20%) of the amount demanded or which is sought in the suit.
Ark.Code Ann. § 23-79-208(d)(1) (Supp.2009). This court has previously held that section 23-79-208(d) is penal in nature. See State Farm Mut. Auto. Ins. Co. v. Thomas, 316 Ark. 345, 871 S.W.2d 571 (1994). We have stated that its purpose is to punish unwarranted delaying tactics of insurance companies. See Farm Bureau Mut. Ins. Co. v. David, 324 Ark. 387, 921 S.W.2d 930 (1996). Denying the penalty and attorney’s fees is proper where the insured made a demand for more than they were entitled to recover:
It could never have been the purpose of the legislature to make the insurance company pay a penalty and attorneys’ fees for contesting a claim that they did not owe. Such an | fiact would be unconstitutional. The companies have the right to resist the payment of a demand that they do not owe. When the plaintiff demands an excessive amount he is in the wrong. The penalty and attorneys’ fee is for the benefit of the one who is only seeking to recover, after demand, what is due him under the terms of his contract, and who is compelled to resort to the courts to obtain it.
Nat’l Standard Ins. Co. v. Westbrooks, 331 Ark. 445, 449, 962 S.W.2d 355, 357 (1998) (quoting Pacific Mut. Life Ins. Co. v. Carter, 92 Ark. 378, 388, 123 S.W. 384 (1909)).
The issue in the instant case is whether the circuit court erred in finding that Stamps did not change the “amount demanded” or the amount that she “sought in the suit” during trial. No demand is required under section 23-79-208 other than the filing of a suit; however, a new and lesser demand may be made by amendment after a suit is filed. See R.J. “Bob” Jones Excavating Contractor, Inc. v. Firemen’s Ins. Co., 324 Ark. 282, 920 S.W.2d 483 (1996). When such an amendment is made, the insurer’s liability under section 23-79-208 is determined by whether it elects to contest the claim rather than offering to pay the reduced amount or asking for time in which to pay. See id.
In the instant case, it is undisputed that Stamps filed an “amended demand,” which sought satisfaction under the underinsured policy of damages in the amount of $150,000. While State Farm first argues that Stamps’s amended demand should not be considered because it is not a pleading recognized by the Arkansas Rules of Civil Procedure, there is no such requirement included in section 23-79-208. The amended demand was easily evidenced because it was in the form of a document filed with the court, and it clearly stated a reduced amount being demanded from State Farm. State Farm further contends that Stamps actually |7demanded $250,000 because that is the amount of damages that she actually requested from the jury during trial. We disagree.
The two cases from this court cited by State Farm are easily distinguishable from the instant case. In Unum Life Insurance Co. of America v. Edwards, 362 Ark. 624, 210 S.W.3d 84 (2005), this court affirmed the award of the statutory penalty and attorney’s fees because the jury found that Edwards was entitled to $43,943, which was within twenty percent of the maximum benefits that Edwards could receive under the policy, $54,928.75. The maximum benefits amount was used because, prior to trial, there was no specific amount of money that was demanded or sought. Therefore, the only amount that the court could consider was the evidence that Edwards presented at trial, seeking all future benefits due under her policy. Here, Stamps made a specific pretrial demand from State Farm for $150,000. Because State Farm refused that demand, the case went to trial.
In Southern Farm Bureau Casualty Insurance Co. v. Brinker, 350 Ark. 15, 84 S.W.3d 846 (2002), we held that although Brinker’s complaint had sought one amount, she later filed an amended complaint and sent a demand letter reducing that amount and, therefore, was entitled to penalties and fees pursuant to the statute when the jury awarded her that reduced amount. State Farm cites this case to support that a later demand for judgment is controlling to determine whether a demand is within twenty percent of the amount awarded. However, that is not at issue here considering that the circuit court simply found that no later demand for judgment was actually made after Stamps’s demand of $150,000.
hln an unreported case, McAlister v. Nationwide Mutual Fire Insurance Co., 2006 WL 6640380, 2006 U.S. Dist. LEXIS 71014 (W.D.Ark. Sept. 29, 2006), the United States District Court for the Western District of Arkansas denied a request for the statutory penalty and attorney’s fees when the insureds’ complaint had demanded $60,000 and they were awarded $68,261 by the jury because they had specifically asked the jury for $108,305 at trial. This case is perhaps the most similar to the case at hand. However, in the instant case, the circuit court did not find that Stamps had made a specific demand at trial regardless of the statements that were made referencing the policy limits of $250,000. We cannot say that the finding was clearly erroneous.
Had State Farm paid the $150,000 demand, the ease would not have proceeded to trial. State Farm made a choice not to pay that demand, and the appellees were forced to go to trial. After trial, the jury awarded Stamps an amount within twenty percent of the demand that would have put an end to the litigation. The assumption is that Stamps’s demand of $150,000 had not been unreasonable and should have been paid. As noted above, the purpose of section 23-79-208 is to punish unwarranted delaying tactics of insurance companies. Therefore, we affirm the circuit court’s finding and its order awarding the statutory penalty and attorney’s fees to Stamps.
Affirmed.
IMBER, J., not participating.
. Although Gary Stamps is also shown as a party, he did not receive an award at trial and does not appeal that finding.
. Eda had also argued that she was entitled to prejudgment interest; however, the circuit court denied that motion, and she did not appeal that ruling. | [
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MOTION FOR RULE ON CLERK
PER CURIAM.
Natasha White, by and through her attorney Jesse L. Kearney, has filed a motion for rule on clerk to accept the record and permission to file a belated brief. Attorney Kearney states in the motion that he is at fault for failing to perfect the appeal.
We now entertain motions for rule on clerk in appeals from termination of parental rights. See Moore v. Arkansas Dep’t of Human Servs., 363 Ark. 205, 212 S.W.3d 1 (2005). We afford indigent parents in termination of parental rights actions similar protections afforded indigent criminal defendants. Latiolais v. Arkansas Dep’t of Human Servs., 368 Ark. 381, 382, 246 S.W.3d 413 (2006). As attorney Kearney has admitted fault, we grant the motion for rule on clerk. See Moore, supra; McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). A copy of this opinion will be forwarded to the Arkansas Supreme Court committee on Professional Conduct. | [
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M. MICHAEL KINARD, Judge.
| Appellant, Pearlene Ford, as Trustee of the Pearlene Ford Trust, appeals from the trial court’s denial of her motion for directed verdict in a jury trial. Appellant and appellee are mother and son. In 1985, appellant, who is the record owner of the property in question, allowed appellee to move onto the property. Appellee was experiencing financial difficulties at the time he moved onto the property. After moving onto the property, appellee made a number of improvements to a residence on the property, including redoing the electrical and plumbing systems in the home, putting in a new central heat and air unit, putting in a new septic system, and putting a new roof onto the residence. Appellee has paid all due property taxes, insurance, and utilities since moving onto the property-
In 1986, appellee began a car lot business on the property, with the business office |2located in the residence. Prior to starting the business, appellee arranged to have the property re-zoned from agricultural to commercial. The car lot business has been in continuous operation on the property since its inception. Appellee testified at trial that, in order to set up the business, he renovated an existing chicken house on the property. Also in 1986, ap-pellee arranged to have an existing vineyard removed from the property.
In 1988, appellee pastured cattle on the property. Appellee allowed his daughter to place a trailer on the property in 1991. At various times, appellee would allow other people to live on the property. The evidence produced at trial showed that appellant was aware of appellee’s activities on the property, and that appellee never denied appellant access to the property.
In 1996, as part of the property settlement agreement pursuant to his divorce, appellee stated that he had no interest in real property of any kind. On January 11, 2005, appellant established a revocable trust and deeded the property from herself as an individual to herself as trustee of the revocable trust. Appellee was aware of appellant’s deeding of the property and made no attempt to stop appellant from deeding the property.
In June 2006, appellant filed a complaint in unlawful detainer, seeking to remove a tenant, Gary Rhodes, who had obtained appellee’s permission to reside on the property after appellee moved off of the property in December 2005. Appellee filed a motion to intervene in the unlawful detainer action, claiming that he was the owner of the property through adverse possession against appellant. Appellee later amended his motion to include a claim lsof promissory estoppel against appellant. Appellee’s motion to intervene was granted. Prior to trial, Rhodes was dismissed as a party to the action. The matter was tried before a jury. During the trial, appellant moved for directed verdict on ap-pellee’s claims of adverse possession and promissory estoppel. The trial court granted appellant’s motion for directed verdict as to the promissory estoppel claim, but denied appellant’s motion with respect to the claim of adverse possession. The jury found in favor of appellee via a general verdict. This appeal followed.
Our standard of review regarding a denial of a motion for a directed verdict in a case that is submitted to a jury is whether the jury’s verdict is supported by substantial evidence. Crawford Co. v. Jones, 365 Ark. 585, 589, 232 S.W.3d 433, 437 (2006). Substantial evidence is evidence that is sufficient to compel a conclusion one way or another and goes beyond suspicion and conjecture. Id.
At trial, appellant moved for directed verdict on the grounds that appellee failed to prove all of the elements necessary for adverse possession. In order to prove ownership of land by adverse possession, the party claiming possession must show continuous possession of the property for seven years. Robertson v. Lees, 87 Ark.App. 172, 183, 189 S.W.3d 463, 471 (2004). In addition, that possession must be actual, open, notorious, continuous, |4hostile, exclusive, and accompanied by an intent to hold against the true owner. Id. Also, because the use of land by family members is presumed to be permissive, stronger evidence of adverse possession is required in cases involving family. Id. at 184, 189 S.W.3d at 471. If the original use and possession of the land is permissive, it cannot become adverse until notice of the hostility of the possessor’s holding has been brought home to the owner by actual notice or by a holding so open and notorious as to raise a presumption of notice equivalent to actual notice; the evidence of adverse holding when the original entry is by permission must be very clear. Rickett v. O’Dell, 86 Ark.App. 86, 91, 160 S.W.3d 717, 720 (2004).
In this case, it is not disputed that appellee has been in continuous, actual, and open possession of the land since 1985, which is well in excess of the seven years required for adverse possession. Appellant argued in her motion for directed verdict, and argues again on appeal, that appellee’s claim to the property must fail because he has failed to demonstrate that his possession was adverse to the interests of appellant. Appellee argues, in turn, that he produced substantial evidence at trial that his possession of the property was adverse to the interests of appellant.
Our supreme court has previously provided guidance as to what actions by a party claiming possession will be sufficient to provide notice of hostile intent in cases involving |sfamily members. In McGuire v. Wallis, 231 Ark. 506, 330 S.W.2d 714 (1960), the court considered whether one of the parties could have successfully asserted a claim of adverse possession against his siblings. The court held, in an opinion authored by the venerable Justice George Rose Smith, that McGuire could not show adverse possession, and stated that it was not persuaded that his activities on the property, which included putting two barns on the property, drilling a well on the property, and putting in a stock pond on the property would satisfy his burden to show possession hostile to his siblings. 231 Ark. at 509, 330 S.W.2d at 717.
Although appellee relies upon his various activities on the property to support his claim of ownership through adverse possession, his original use of the land was permissive. In order for appellee to be the owner of the property by adverse possession, that use must ripen from permissive to adverse and, as noted above, the evidence of adverse possession must be stronger in cases involving family than is necessary in cases in which the parties are unrelated. Therefore, the question before us becomes whether appellee produced substantial evidence of actions by him on the land occurring at least seven years prior to appellant’s unlawful detainer action that would give rise to a presumption of notice by appellant of his adverse possession of the property. We hold that he has not.
Appellee argues that his improvements to the home demonstrate his hostile in tent. However, such improvements were not inconsistent with a use that appellant might reasonably have made of the property herself. Appellee also argues that his continuous |(irunning of a business on the property demonstrates hostile intent. The record shows that the only change he made to the property in order to set up his business was a remodeling of an existing chicken house in order to turn it into a garage. Except for that remodeling, it appears that appellee could shut down his business and move any vehicles off of the property while leaving the property in substantially the same condition it was in before he started the business. In other words, none of the improvements made by appellee were permanent in nature. Certainly appellee made far less substantial physical changes to the property in this case than the party claiming adverse possession in McGuire, supra, did to the property in that case, a case that involved siblings and not a mother and child, as we have here. In addition, not only did ap-pellee not engage in conduct so open and notorious as to raise a presumption of notice equivalent to actual notice, he made no attempt to stop appellant from exercising dominion over the property by deeding it to a trust in 2005, twenty years after he moved onto the property.
We find that there is no substantial evidence of adverse use in the context of a parent-child relationship in this case. Appellant allowed appellee to move onto the property in order to help him financially, and allowed him to operate a business on the property and keep the profits from the business in lieu of providing the support directly herself, as a mother might reasonably feel compelled to do for her child. As long as appellee engaged in uses of the property that were not inconsistent with the genesis of his original permission, appellant voiced no objection. It was not until appellee utilized the property to 17benefit an unrelated party after moving off of the property himself, that appellee went beyond the scope of his original permissive use. Upon learning of this use by appellee, appellant filed suit well before seven years had passed since appellee began this new, unauthorized use of the property. Accordingly, we find no substantial evidence of adverse possession of the property by appellee and reverse the verdict of the jury.
Reversed.
VAUGHT, C.J., and HART, GLOVER, and HENRY, JJ., agree.
GLADWIN, J„ dissents.
. The trial court’s granting of appellant’s motion for directed verdict with regard to appel-lee’s claim of promissory estoppel was not appealed. Therefore, only the claim of adverse possession will be considered on appeal.
. Arkansas Code Annotated section 18-11-106, which was passed in 1995, imposed additional requirements in order for adverse possession to be shown. Because appellee is claiming possession since 1985, the requirements in Arkansas Code Annotated section 18-11-106 do not apply in this case. | [
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ANNABELLE CLINTON IMBER, Justice.
[ i This interlocutory appeal by the State arises from an order entered by the Sebastian County Circuit Court granting Appel-lee Shane Patton Stites’s motion to suppress evidence discovered inside a locked safe during the execution of a search warrant at Appellee’s residence. For the reasons stated below, we reverse and remand.
According to testimony elicited at the suppression hearing, Detective Wayne Barnett of the Fort Smith Police Department received information from a confidential informant that Appellee was involved in the use and sale of methamphetamine at his home. The informant agreed to cooperate with police by making a controlled buy from Appellee. When the informant went to Appellee’s house, however, Appellee told him to leave and come back later. The informant reported to Detective Barnett that, while inside Appellee’s | chouse, he saw a glass pipe with burnt residue, which is commonly used to smoke methamphetamine, and two small caliber handguns under the coffee table in the living room. Detective Barnett then obtained a search warrant to search Appellee’s home for “drug paraphernalia, methamphetamine and firearms.”
The police promptly executed the warrant and found twenty-one pieces of evidence, including a revolver, drugs, drug paraphernalia, and $435 in cash on Appel-lee’s person. The second handgun mentioned by the informant was never found. During the search, the police discovered a locked safe inside a small closet in the entry hall by the front door and adjacent to the living room. The informant had not reported seeing a safe in the house, and the officers did not know there was a safe until it was discovered during the search. The safe was twelve-by-eighteen inches and large enough to contain drugs, drug paraphernalia and firearms. A locksmith was summoned to the scene to open the safe. Once the safe was opened, the officers discovered crystalline substance, methamphetamine, and a Honeywell lock box that contained a crystalline and vegetable residue.
Appellee was charged with possession of methamphetamine with intent to deliver, possession of marijuana with intent to deliver, possession of drug paraphernalia, simultaneous possession of drugs and firearms, and maintaining a premises for drug activities. He then filed a motion to suppress, asserting, among other things, that the evidence seized from the locked safe found inside his residence should be suppressed because neither the affidavit for the search warrant nor the warrant itself mentioned a safe, and thus, the search |sof the safe exceeded the scope of the search authorized by the warrant. Detective Barnett testified during the suppression hearing that he thought the warrant to search the house authorized him to open the safe if it was capable of holding the items that were the subject of the search warrant; and, had he thought that he did not have authority to open the safe, he would have seized the safe and procured a second warrant to open it, albeit with the same information used to obtain the first one.
The circuit court issued an order granting Appellee’s motion to suppress the evidence discovered inside the locked safe.
The State filed this interlocutory appeal pursuant to Ark. R. App. P.-Crim. 3(a) (2008). Rule 3 provides in pertinent part:
(a) An interlocutory appeal on behalf of the state may be taken only from a pretrial order in a felony prosecution which (1) grants a motion under Ark. R.Crim. P 16.2 to suppress seized evidence, (2) suppresses a defendant’s confession, or (3) grants a motion under Ark.Code Ann. § 16-42-101(c) to allow evidence of the victim’s prior sexual conduct. The prosecuting attorney shall file, within ten (10) days after the entering of the order, a notice of appeal together with a certificate that the appeal is not taken for the purposes of delay and that the order substantially prejudices the prosecution of the case. Further proceedings in the trial court shall be stayed pending determination of the appeal.
(c) When a notice of appeal is filed pursuant to either subsection (a) or (b) of this rule, the clerk of the court in which the prosecution sought to be appealed took place shall immediately cause a transcript of the trial record to be made and transmitted to the attorney general, or delivered to the prosecuting attorney, to be by him delivered to the attorney general. If the attorney general, on inspecting the trial record, is satisfied that error has been committed to the prejudice of the state, and that the correct and uniform administration of the criminal law requires review by the Supreme Court, he may take the appeal by filing the transcript of the trial record with the clerk |4of the Supreme Court within sixty (60) days after the filing of the notice of appeal.
Ark. R. App. P.-Crim. 3(a) and (c) (2008). Pursuant to Ark. R. App. P.-Crim. 3(c), the Attorney General certified that he was satisfied that error had been committed to the prejudice of the State. The transcript of the trial was filed on October 8, 2008, within the sixty-day requirement of Rule 3(c).
Under Ark. R. App. P.-Crim. 3, when the State files an interlocutory appeal from the trial court’s grant of a defendant’s motion to suppress evidence under Rule 16.2, an initial inquiry by this court must be whether the appeal involves the correct and uniform administration of justice and of the criminal law. State v. Howard, 341 Ark. 640, 19 S.W.3d 4 (2000). Section (a) of the rule outlines the permissive grounds for State interlocutory appeals in criminal cases. Id. We have many times stated that the State’s ability to appeal is not a matter of right but limited to those cases described under Rule 3. Id. We accept appeals by the State when our holding would be important to the correct and uniform administration of the criminal law. Id. As a matter of practice, our court has only taken appeals that are narrow in scope and involve the interpretation of law. Id. When an appeal does not present an issue of interpretation of the criminal rules with widespread ramifications, this court has held that such an appeal does not involve the correct and uniform administration of the law. Id. Appeals are not allowed merely to demonstrate the fact that the trial court erred. Id. Therefore, where the resolution of the State’s attempted appeal turns on the facts of the case and would not require interpretation of our criminal |firules with widespread ramifications, acceptance of the State’s appeal is not allowed under Rule 3. Id. An appeal that raises the issue of application, not interpretation, of a statutory provision does not involve the correct and uniform administration of justice or the criminal law. Id. Where the trial court acts within its discretion after making an evidentiary decision based on the facts on hand or even a mixed question of law and fact, this court will not accept an appeal under Ark. R. App. P.-Crim. 3(c). Id.
The State argues that the issue to be decided is whether Ark. R.Crim. P. 13.3(d) authorizes officers to open a closed container, in this case a safe, during the execution of a search warrant when the container is capable of holding the items that are the subject of the warrant. Appellee, on the other hand, argues that this appeal involves only the application of Rule 13.3(d) to the particular and discrete facts in the instant case. He suggests that the State’s appeal necessarily turns on whether the facts support the circuit court’s finding that the search of the locked safe exceeded what was authorized by the warrant; that is, whether the circuit court acted within its discretion after making an evidentiary decision based on the facts.
Pursuant to Rule 13.3(d), the scope of a search shall be “only such as is authorized by the warrant and is reasonably necessary to discover the persons or things specified therein.” Ark. R.Crim. P. 18.3(d). In ruling on Appellee’s motion to suppress, the circuit court ruled that the evidence found inside the safe during the execution of a search warrant at Appellee’s residence should be suppressed because the safe was locked and the officers had Ran opportunity to take the safe out of the home and obtain a second search warrant. Thus, the issue on appeal is whether Rule 13.3(d) authorizes police officers to open a locked container during a lawful search of a premises when the officers believe that it is necessary to discover things specified in the warrant. In other words, the State’s appeal presents a legal question regarding the scope of search warrants and whether the circuit court misinterpreted Rule 13.3(d) and thus applied a flawed interpretation of that rule to suppress the drugs seized from the safe. This issue involves the correct and uniform administration of the law, and we have jurisdiction pursuant to Ark. R. App. P.-Crim. 3 (2008).
Rule 13.3(d) of the Arkansas Rules of Criminal Procedure provides as follows:
The scope of search shall be only such as is authorized by the warrant and is reasonably necessary to discover the persons or things specified therein. Upon discovery of the persons or things so specified, the officer shall take possession or custody of them and search no further under authority of the warrant. If in the course of such search, the officer discovers things not specified in the warrant which he reasonably believes to be subject to seizure, he may also take possession of the things so discovered.
Ark. R.Crim. P. 13.3(d) (2008). We review issues of statutory construction de novo, as it is for this court to decide what a statute means. Middleton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001). We construe court rules using the same means and canons of construction used to interpret statutes. Jackson v. Sparks Reg’l Med. Ctr., 375 Ark. 533, 294 S.W.3d 1 (2009). First, the rule is to be construed just as it reads, giving the words their ordinary and usually accepted meaning in common language. Stanley v. Ligón, 374 Ark. 6, 285 S.W.3d 649 (2008). There is no need to resort to rules of 17construction when the language is plain and unambiguous. Id.
The State’s appeal presents an issue that has heretofore never been decided by this court: whether police officers can search a container during a lawful search of a premises when the officers believe that a search of the container is necessary to discover the things specified in the warrant. In the context of a warrantless search of an automobile, we have held that a search of containers found inside a vehicle was justified where probable cause justified the search of the vehicle and the containers could contain the suspected contraband. McDaniel v. State, 337 Ark. 431, 990 S.W.2d 515 (1999). In upholding the seizure of a safe discovered during the execution of a search warrant for stolen goods in a premises, the Arkansas Court of Appeals noted that “the safe was found while the officers were still conducting their search for the television and the television could have been concealed inside the safe.” Campbell v. State, 27 Ark.App. 82, 87, 766 S.W.2d 940, 943 (1989). While a second warrant was obtained to open the safe in Campbell, the court of appeals did not decide whether the second warrant was necessary in order for the officers to conduct a lawful search of the safe.
Likewise, the United States Supreme Court has not directly addressed the scope of a warrant to search a premises. However, in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), a case involving the warrantless search of containers found inside a vehicle, the Supreme Court discussed the principles that govern the lawful search of containers:
A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the | ^possibility that separate acts of entry or opening may be required to complete the search. [Footnote omitted.] Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found. A warrant to open a footlocker to search for marihuana would also authorize the opening of packages found inside.... When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trucks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.[Footnote omitted.]
Id. at 820-21, 822-23, 102 S.Ct. 2157.
The issue on appeal has, however, been addressed by the United States Eighth Circuit Court of Appeals. In U.S. v. Wright, 704 F.2d 420 (8th Cir.1983), the police found a locked safe not specified in the warrant during a search of defendant’s home and forced the defendant to open it. Citing United States v. Ross, supra, the Eighth Circuit held that the warrant obtained by the police officers permitted them to search the safe. Id. Similarly, in United States v. Johnson, 709 F.2d 515 (8th Cir.1983), the police removed a floor safe during a search of Johnson’s bedroom and later opened it at the police station without Johnson’s consent. In addressing Johnson’s argument that the police had no authority to remove and open the safe, the Eighth Circuit interpreted the Supreme Court’s decision in Ross as holding in dicta that “A search warrant authorizing the search of defined premises also authorizes the search of containers found on that premises which reasonably might conceal items listed in the warrant.” United States v. Johnson, 709 F.2d at 516. The Johnson court held that the police were authorized to open the safe under the warrant at the time of | nsearch, and they did not need a second warrant to complete the search of the safe at the police station. Id.
Appellee nonetheless suggests that the Arkansas Constitution gives citizens greater protection against unreasonable searches and seizures in their homes than it does when they drive on public roadways. While the search-and-seizure language of article 2, § 15 of the Arkansas Constitution is very similar to the words of the Fourth Amendment, our constitution, state statutes and criminal rules have clearly embraced a heightened privacy protection for citizens in their homes against unreasonable searches and seizures. State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004). We recognize that we lack authority to extend the protections of the Fourth Amendment beyond the holdings of the United States Supreme Court, but we do have the authority to impose greater restrictions on police activities based upon our own state law. Id. In the Brown case, this court held that, although the Supreme Court has held that the Fourth Amendment does not require knowledge of the right to refuse consent as a prerequisite to a showing of voluntary consent, the failure of law enforcement officers to advise a defendant that he or she has the right to refuse consent to the search violates his or her rights as guaran teed by article 2, § 15 of the Arkansas Constitution. State v. Brown, supra.
Though it is clear that this court may deviate from federal precedent in providing greater protection against unreasonable searches and seizures, we only do so when such a deviation is justified. Our considerations in deciding whether to deviate from federal ^precedent were set forth in State v. Brown:
Without question, a slavish following of federal precedent would render this court’s opinions merely a mirror image of federal jurisprudence, which would carry with it a certain abrogation of our duty to interpret our own state constitution and follow our own state law. Yet, we admit to a concern about deviating too much from federal precedent based solely on our state constitution. A proper balance must be struck between the two.
Id. at 470, 156 S.W.3d at 729.
Unlike the Brown case, which involved a warrantless search of a home by the police, the officers in this case had a valid warrant to search the defendant’s home. In other words, the officers were lawfully present on the premises. Thus, the facts here do not trigger the heightened protection against unlawful intrusion into a citizen’s home that this court adopted in State v. Brown, supra. To require the police to obtain a warrant in order to search every closed container found during the course of a search would impose an unreasonable burden on the police and make it virtually impossible for them to execute a search warrant in many instances. We therefore hold that, when a legitimate search is under way, and when its purpose and its limits have been precisely defined, police officers need not obtain a second warrant to search containers found during a premises search.
A lawful search of a vehicle or a home does not, however, warrant a search of every part of the vehicle or home. Pursuant to Ark. R.Crim. P. 13.3(d), the scope of search shall be only such as is authorized by the warrant and is reasonably necessary to discover the persons or things specified therein. Rule 13.3(d). In Ross, the Supreme Court recognized this limitation even in the case of a warrantless search of a vehicle:
| nThe scope of a warrantless search of an automobile thus is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found. Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase. Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.
Ross, 456 at 824, 102 S.Ct. 2157. The Supreme Court elaborated further in California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991), when it held that its prior rule governing the search of containers (a container could not be opened without a separate warrant) was outmoded. Id. The Court concluded, “The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.” Id. at 580, 111 S.Ct. 1982. Similarly, in McDaniel v. State, 337 Ark. 431, 990 S.W.2d 515, we stated that the scope of the search must be appropriate for the items to be found. In that case, because the officers smelled the odor of marijuana emanating from the truck, the scope of the search could lawfully include containers within the vehicle that could contain marijuana. Id.
In the instant case, there is no dispute that the search for the items specified in the warrant was ongoing when the police opened the safe. At that time, they had found some of the items listed in the warrant. Moreover, the safe was large enough to contain drugs, drug paraphernalia and the second handgun described by the informant. The fact that the officers had already discovered some drugs and drug paraphernalia did not preclude them from continuing to search for drugs and drug paraphernalia and the second handgun. To 112hold otherwise would lead to an absurd result — the search would have to cease upon the initial discovery of any drugs or drug paraphernalia. It was therefore reasonably necessary for the police to search the safe. Thus, we conclude that the officers’ search of the safe was within the scope of the search authorized by the warrant, and the circuit court erred in ruling that the safe could not be opened without a second warrant. In view of our holding on this point, we need not address the State’s other arguments.
Reversed and remanded. | [
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JOHN B. ROBBINS, Judge.
11Appellant Office of Child Support Enforcement (OCSE) appeals from an order entered August 6, 2008, in which appellee Loren E. Dickens was ordered to pay $810.40 in child-support arrearages. The trial court had previously entered an order on May 12, 2008, awarding OCSE a judgment of $3413.21 for unpaid child support. On appeal, OCSE argues that the trial court lacked jurisdiction to enter the August 6, 2008, order, and that therefore that order is void. Because it was within the trial court’s jurisdiction to enter the order, we affirm.
This case arose from a decree entered on June 13,1997, wherein Mr. Dickens was found to be the father of Allen K. Pollard. The mother is Krissi Hammer, and the child was born out of wedlock on April 15, 1996. Pursuant to the decree, Mr. Dickens was ordered to pay $82.50 in weekly child support through OCSE.
|2On June 1, 2007, OCSE filed a motion for citation against Mr. Dickens, alleging that a substantial child-support arrearage had accrued since entry of the June 18, 1997, order. After a hearing on the motion, the trial court entered an order on February 26, 2008, finding that an arrear-age of $5648.40 had accrued through the end of January 2008. Although a judgment was entered, the order further provided that the case would be reviewed on April 22, 2008, at which time Mr. Dickens was to appear with documents relating to Social Security benefits that had been awarded as a result of his disability.
A hearing was held on April 22, 2008, pursuant to the trial court’s previous order. Based on that hearing, the trial court entered an order dated April 22, 2008, but filed on May 12, 2008, finding that dating back to June 1, 2006, the child had received benefits from Mr. Dickens’ Social Security award in the amount of $292 per month. The trial court abated future child-support payments in lieu of the monthly disability payments. Furthermore, the trial court gave Mr. Dickens credit for disability payments received by the child against any child support that became due after June 1, 2006. As a result, the trial court reduced Mr. Dickens’ child-support arrearage to $3413.21.
Subsequent to the April 22, 2008, hearing, but prior to the order entered May 12, 2008, Mr. Dickens filed a motion on April 30, 2008, wherein he asserted:
1. That on February 12, 2008, this Court found that the Defendant had accrued child support arrearage in the amount of $5,648.40 as of January 31, 2008.
2. After the February 12 hearing the minor child received a back pay award from Social Security in the amount of $4,838.00 which should be applied toward extinguishment of the $5,648.40 arrearage. After applying said payment, there should be a balance due of $810.40.
|⅞3. The order entered by this Court under date of April 22, 2008, which was not approved by the Defendant, fails to give proper credit for said payment and reflects an unpaid balance of $3,413.21 rather than $810.40.
4. This Court should amend the total inclusive balance due to reflect a balance due of $810.40 rather than $3,413.21.
WHEREFORE, Loren E. Dickens prays that this Court amend its order dated April 22, 2008, to reflect a correct balance due of $810.40 rather than $3,413.21, and for all relief to which he may be entitled.
A letter from the trial court’s assistant dated May 7, 2008, and indicating a fax delivery time of 2:51 p.m. on that date, provided:
RE: OCSE vs Dickens
Circuit Court Scott County, Case No. E-l996-242
Dear Counselors:
The above referenced cause has been set on the docket for Tuesday, June 24, 2008 at 9:30 a.m. at the Scott County Courthouse in Waldron, Arkansas before the Honorable Terry Sullivan. Hearing time will be limited to 30 minutes.
Any objection to the date, time, or type of setting must be received by the Court within seven (7) days from the date of this notice; otherwise, the objection will be deemed to have been waived.
Inexplicably, this letter was file-marked March 7, 2008. On May 16, 2008, OCSE submitted a trial brief arguing that Mr. Dickens should not be entitled to an offset against any child-support arrearages that accrued prior to June 1, 2006, and thus that the arrearage owed should remain $3413.21. Mr. Dickens submitted a trial brief on May 27, 2008, arguing that his disability benefits should be applied to all of the arrearages, including those that accrued before June 1, 2006.
|4A hearing was held on June 24, 2008. At the hearing, Mr. Dickens testified about the extent and duration of his disabilities, and both parties gave arguments regarding their respective positions about whether or not the disability benefits should be applied against the total arrearage. At the conclusion of the hearing, the trial court announced, “Okay, after taking the motion into account, I am going to find that after the amount of the Social Secui’ity, $4838 is applied toward the $5648.40 arrearage as of January 31, 2008, there will be a balance due of $810.40 as of January 31, 2008 instead of $3413.21.” On August 6, 2008, the trial court entered an order to that effect.
On appeal, OCSE argues that the August 6, 2008, order was void, having been entered without jurisdiction. OCSE relies on Arkansas Rule of Civil Procedure 59(b), which provides:
Time for Motion. A motion for a new trial shall be filed not later than 10 days after the entry of judgment. A motion made before entry of judgment shall become effective and be treated as filed on the day after the judgment is entered. If the court neither grants nor denies the motion within 30 days of the date on which it is filed or treated as filed, it shall be deemed denied as of the 30th day.
OCSE asserts that Mr. Dickens’ motion filed on April 30, 2008, which requested relief from the order arising from the April 22, 2008, hearing, was in essence a motion for new trial. However, the order being challenged was not entered until May 12, 2008. Therefore, according to OCSE, pursuant to Rule 59(b) Mr. Dickens’ motion became effective and was treated as filed on May 13, 2008. OCSE submits that because the trial court neither granted nor denied the motion within 30 days, by rule it was deemed denied | Bon June 12, 2008. A trial court loses jurisdiction to act on a motion for new trial by failing to rule on it within 30 days after filing. Cincinnati Ins. Co. v. Johnson, 367 Ark. 468, 241 S.W.3d 264 (2006). Because the trial court in the present case did not take action on Mr. Dickens’ motion until entering an order on August 6, 2008, OCSE contends that jurisdiction was lost and that the order is void.
OCSE acknowledges that when the trial court held a hearing on Mr. Dickens’ motion on June 24, 2008, it did not bring the deemed-denied rule to the trial court’s attention or raise the issue of jurisdiction. However, in Cincinnati Ins. Co. v. Johnson, supra, the supreme court said in its unvarying application of the rule, that subject-matter jurisdiction is always open, cannot be waived, can be questioned for the first time on appeal, and can even be raised by the appellate court. That being the case, OCSE argues that the August 6, 2008, order must be reversed for want of jurisdiction.
We hold that the trial court had jurisdiction to enter the August 6, 2008, order modifying the amount of child-support arrearages under Arkansas Rule of Civil Procedure 60(a), which provides:
(a) Ninety-Day Limitation. To correct errors or mistakes or to prevent the miscarriage of justice, the court may modify or vacate a judgment, order or decree on motion of the court or any party, with prior notice to all parties, within ninety days of its having been filed with the clerk.
Unquestionably, a trial court has broad authority to correct nonclerical mistakes or errors so as to prevent a miscarriage of justice if the court does so within ninety days of the filing | fiof its decree or order. Lord v. Mazzanti, 339 Ark. 25, 2 S.W.3d 76 (1999). In this case, the trial court entered the order now on appeal eighty-six days after entry of its original order.
While OCSE asserts, and Mr. Dickens agrees, that Mr. Dickens’ motion filed on April 30, 2008, was effectively a motion for new trial under Rule 59, the contents of the motion demonstrate otherwise. In his motion, Mr. Dickens did not ask for a new trial but rather requested that the trial court enter an order reducing his balance from $3413.21 to $810.40. This request did not require the taking of additional evidence, but rather an application of the Social Security benefits received by the child against Mr. Dickens’ total child-support arrearage. Mr. Dickens’ motion is best characterized as a Rule 60(a) motion for modification of the prior order, and the trial court modified its order within ninety days to correct an error and prevent a miscarriage of justice as authorized by the rule. Moreover, it cannot be said that Mr. Dickens’ motion was deemed denied prior to the issuance of the trial court’s August 6, 2008, order, because there is no deemed-denied provision in Rule 60. Because the trial court had jurisdiction to enter the order modifying the amount of child-support arrearages, and jurisdiction is the only issue raised by OCSE in this appeal, the order is affirmed.
Affirmed.
KINARD and BAKER, JJ., agree. | [
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LARRY D. VAUGHT, Chief Judge.
| Appellant James Grant appeals the trial court’s order awarding grandparent visitation to appellee Betty Richardson. James argues on appeal that the order was premature and unsupported by findings and competent evidence. We affirm.
In January 1997, James married Cassie Richardson. They had two children, KG. and T.G., born July 24, 1997, and August 17, 2001, respectively. Cassie and James divorced in 2003. The divorce decree provided for joint custody, with Cassie having primary physical custody and James having visitation. James exercised visitation initially, but he discontinued it when he took an out-of-state job.
Cassie’s mother, Betty, became concerned about the well being of K.G. and T.G. after Cassie became romantically involved with Larry Matney. Eventually, Betty filed a petition seeking to have herself appointed temporary guardian of K.G. and T.G. Betty ^alleged, among other things, that Cassie, K.G., and T.G. were living with Larry and that he was abusing them. James consented to the guardianship, and an order granting the temporary-guardianship petition was entered by the trial court in June 2006. In December 2006, James petitioned the court seeking termination of the temporary guardianship and custody of K.G. and T.G. In response, Betty sought permanent guardianship of the children or, in the alternative, grandparent visitation.
At the hearing in December 2007, Betty presented the testimony of two of KG.’s teachers, who testified that K.G. had shown great academic improvement since being cared for by Betty. The teachers also testified that Betty had consistently signed KG.’s school agenda book and attended parent-teacher conferences. Betty also presented the testimony of two of her neighbors, who testified that Betty was taking excellent care of K.G. and T.G. and that the children were very happy.
David Richardson, Cassie’s father and Betty’s ex-husband, testified that Betty had been taking good care of the children. He also testified that Cassie was living with him currently and that he had no objection to Cassie having custody of the children as long as Larry, who “mistreated” Cassie and the children, was not involved.
Cassie testified that she did not want custody of her children but that she did not want her mother, Betty, to have permanent guardianship of them. Instead, she wanted James to have custody of the children. She admitted that when she and James were married, he struck her in the face and broke her jaw. However, she maintained that James had changed since their divorce and that he would be a good father.
| (¡Much of Betty’s testimony explained why she sought temporary guardianship over the children and all she had done to care for the children while she was their guardian. She testified that she did not prevent Cassie and James from exercising visitation; however, she did state that she would not let the children be around Cassie if she was with Larry.
James testified that after the divorce, he regularly visited his children but that his visits stopped when he took a job on a cruise ship. While away, he received calls from Betty concerned about the children living with Larry. James wanted the children out of the abusive situation, and therefore, he consented to Betty’s temporary guardianship with the condition that he would seek full custody of the children upon his return.
The trial court issued an order granting James’s petition for custody. The trial court also found that Betty was entitled to grandparent visitation pursuant to Arkansas Code Annotated section 9-13-103 (Repl.2008), stating:
The court finds that Betty Richardson has been the custodian of the children for many months. The Court finds that she is the person that stepped up and took the children when [James] Grant was off somewhere on the seven seas, and Cassie Grant was living with a wife beater and drunkard.
James appeals the trial court’s award of grandparent visitation. Relying upon Oldham v. Morgan, 372 Ark. 159, 271 S.W.3d 507 (2008), James first insists that the trial court prematurely awarded grandparent visitation because there was no evidence that Betty had been or would have been denied reasonable visitation with K.G. and T.G. James also argues that the trial court erred in awarding grandparent visitation because there was a lack of ^findings and competent evidence to support findings that demonstrated that it was in the best interests of the children to have grandparent visitation.
We review domestic-relations cases de novo on the record, and we will not reverse the trial court’s findings unless they are clearly erroneous. Hunter v. Haunert, 101 Ark.App. 93, 270 S.W.3d 339 (2007). A trial court’s finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire record is left with a definite and firm conviction that a mistake has been committed. Id. We give due deference to the superior position of the trial court to view and judge the credibility of the witnesses. Id. This deference is even greater in cases involving children, as a heavier burden is placed on the judge to utilize to the fullest extent his or her powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Id.
The grandparent statute provides that a grandparent may petition for reasonable visitation rights with her grandchildren if the marital relationship between the parents and the child has been severed by divorce. Ark.Code Ann. § 9 — 13—103(b)(1). However, there is a rebuttable presumption that a custodian’s decision denying or limiting visitation to a grandparent is in the best interests of the child. Ark.Code Ann. § 9 — 13—103(c)(1). To rebut the presumption, the grandparent must prove by a preponderance of the evidence that:
(A) The petitioner has established a significant and viable relationship with the child for whom he or she is requesting visitation; and
(B) Visitation with the petitioner is in the best interest of the child.
Ark.Code Ann. § 9-13-103(C)(2)(A), (B).
IsJames, relying upon Oldham, urges that the trial court’s order awarding grandparent visitation is premature because there was no evidence that Betty had ever been or ever would have been denied reasonable visitation with K.G. and T.G. He argues there must be “some unreasonable denial of the visitation before the grandparent[-]visitation statute can be utilized to force a parent to allow a grandparent to have specific visitation rights.”
In Oldham, maternal grandparents sought grandparent visitation after their daughter died in a car accident and her ex-husband was awarded full custody of then-daughter. The trial court awarded grandparent visitation, holding that the grandparents rebutted the presumption that the child’s father’s decision denying or limiting visitation was in the best interest of the child. In reversing the trial court’s order of visitation, our supreme court held that there was a lack of evidence supporting the finding that the loss of the relationship would result in harm because, among other things, there was “no evidence presented at trial that the relationship between the [grandparents] and [the child] had been or would be lost.” Oldham, 372 Ark. at 165-66, 271 S.W.3d at 511. The maternal grandmother testified that:
[A]t the moment, [the child’s father] is very willing to work with me and let me have [the child] as much as I want her. But I do know that people get remarried and it does affect that relationship. I just want to know that in five years time, if he should remarry, that I have a chance to still see her. It is kind of a safeguard for the future. Right now he has been more than willing to let me have her when I need her and want to see her.
Oldham, 372 Ark. at 166, 271 S.W.3d at 511.
Oldham is distinguishable from the case at bar. In Oldham, there was no evidence to support the finding that grandparent visitation was in the child’s best interest because the | /acts were undisputed that the grandparents had not been unreasonably denied visitation. As stated by the supreme court, there was no evidence that the relationship between the grandparents and their grandchild “had been or would be lost.” The parties there were not involved in any type of a custody, guardianship, or visitation dispute concerning the child. Further, the grandmother in Old-ham testified that she was seeking specified visitation not because she had been denied visitation by the child’s father, but to protect her right to see her grandchild in the future.
To the contrary, there is evidence in the instant case supporting a finding that grandparent visitation was in the children’s best interests because evidence was presented that demonstrated harm would come to K.G. and T.G. should they discontinue their relationship with Betty. Betty had full custody, via the guardianship, of her grandchildren and has provided one-hundred percent of their care for eighteen months. Further, the facts demonstrate that without court ordered visitation, Betty would likely have been denied reasonable visitation with the children. Betty and James are adversaries in a custody dispute, and there was testimony that they did not like each other. In response to James’s testimony that he planned to move the children to Kentucky, Betty stated, “I’m not real confident that if. [James] had custody of the kids that I’d get to see them regularly.” Thus, unlike Oldham, there was evidence that the relationship between the children and Betty “had been or would be lost” and that the children would suffer harm without grandparent visitation. As such, we hold that Oldham is distinguishable and that it was not premature for the trial court to award grandparent visitation.
|7For his second argument, James contends that the trial court erred in awarding grandparent visitation to Betty because there was a lack of findings made and/or competent evidence presented to support findings demonstrating that it was in the best interests of the children to have grandparent visitation. James concedes that the trial court’s findings support the statutory requirement that a significant and viable relationship exist between Betty and her grandchildren. As such, to establish grandparent visitation, Betty had to prove that visitation was in the best interests of her grandchildren. Ark.Code Ann. § 9-13-103(c)(2)(B). Be cause the grandparent-visitation statute is in derogation of or at variance with the common law, it must be strictly construed. Oldham, supra.
Although there was no express finding that grandparent visitation was in the children’s best interests, James cites to no authority that the lack of such a finding requires reversal. Importantly, when an appeal is reviewed de novo, this means the whole case is open for review. See Stehle v. Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (2009). De novo review does not mean that the findings of fact of the trial court are dismissed out of hand and that the appellate court becomes the surrogate trial judge. Id. What it does Rmean is that a complete review of the evidence and record may take place as part of the appellate review to determine whether the trial court clearly erred in either making a finding of fact or in failing to do so. Id. Therefore, while the trial court in the instant case may have not made express factual findings on the issue of the best interests of the children, when opening the entire case for review, we hold that there was ample evidence presented that could have supported the finding that grandparent visitation was in the best interests of K.G. and T.G. See Hamilton v. Barrett, 337 Ark. 460, 466, 989 S.W.2d 520, 523 (1999) (stating that “[w]here the chancellor fails to make findings of fact about a change in circumstances, this court, under its de novo review, may nonetheless conclude that there was sufficient evidence from which a chancellor could have found a change in circumstances”) (emphasis in original).
To prove that grandparent visitation was in the best interests of K.G. and T.G., Betty had to establish, by a preponderance of the evidence, that she had the capacity to give the children love, affection, and guidance, that the loss of the relationship would harm the children, and that Betty was willing to cooperate with James concerning visitation. Ark.Code Ann. § 9-13-103(e)(1) — (3). The testimony of two of K.G.’s teachers, two of Betty’s neighbors, Betty’s ex-husband, and Betty clearly demonstrated Betty’s ability to provide love, affection, and guidance to the children. Based on this evidence and the fact that Betty served as the children’s guardian for eighteen months, there is no doubt that harm would come to the children if they are not permitted to maintain their relationship with Betty. Finally, there was testimony presented that when Betty was serving as guardian, she ^cooperated with James and Cassie concerning their visitation. This evidence supports the conclusion that she would fully cooperate with James for grandparent visitation. Accordingly, under our de novo review, we hold that the trial court did not clearly err in entering an order awarding grandparent visitation.
Affirmed.
HART and BROWN, JJ., agree.
. Betty has not appealed this ruling.
. Arkansas Code Annotated section 9 — J 3— 103(e) provides more detail concerning what is required to establish that visitation with the grandparent is in the best interests of the child:
(e) To establish that visitation with the petitioner is in the best interest of the child, the petitíoner must prove by a preponderance of the evidence the following:
(1) The petitioner has the capacity to give the child love, affection, and guidance;
(2) The loss of the relationship between the petitioner and the child is likely to harm the child; and
(3) The petitioner is willing to cooperate with the custodian if visitation with the child is allowed. | [
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Judith Rogers, Judge.
This appeal arises from a post-divorce action wherein the appellant was held to be responsible for the payment of alimony and accrued arrearages resulting from this obligation. On appeal, the appellant contends that the chancellor lacked the authority to modify the decree of divorce and further claims error in the chancellor’s award of judgment for the arrearages. We affirm the decision of the chancellor.
The parties were divorced by decree of April 4, 1984, after thirty-three years of marriage. The appellant had retired upon twenty-one years of service from the United States Air Force, effective December 24, 1965, and was receiving benefits therefrom. Paragraph XIII of the decree recited:
That the Plaintiff, Margaret Ford, is awarded pursuant to the Uniformed Services Former Spouses Protection Act an amount equal to 1/3 (33.33%) of the disposable retired pay to which Defendant, Lawrence Ford, is entitled to receive for military service.
No appeal was taken from the decree. On September 22, 1986, appellee filed a Petition to Show Cause on grounds not pertinent to this appeal; however, in her motion, she requested disclosure of the amount appellant was then receiving in retirement benefits. Until that time, it appears that appellant had been making payments in compliance with this provision of the decree. In his response to appellee’s petition, dated October 2, 1986, appellant alleged that his payments should be reduced because the sums attributable to his 40% disability upon retirement were not “disposable retired pay” under the Uniformed Services Former Spouses Protection Act. Appellant ceased making payments in November of 1986.
A hearing in which all issues were joined was held on August 5, 1987, before the same chancellor who rendered the decree of divorce. At that time, with reference to the Uniformed Services Former Spouses Protection Act, 10 U.S.C.A. § 1408 (1983), appellant argued that he was under no obligation to pay any funds or monies since his retirement pay was due to disability. The chancellor rendered his decision by letter of September 1, 1987, and found that the provision was intended as an award of alimony by which the retirement benefits received by appellant were used only as a measure for determining the specific, monthly amount appellee was entitled to receive. After various motions were filed by the parties, the Court issued a Memorandum Opinion on June 6, 1988, and from this opinion his rulings were reduced to order form and filed of record on February 8, 1989. The chancellor made the following findings pertaining to the award of alimony:
4. The Court by its Decree of April 4, 1984, awarded the Plaintiff a specific amount of money to be paid by Defendant; that the amount so awarded was to be equal to 1/3 of the income the Defendant derived from military retirement; that the verbiage contained in the Decree “pursuant to the Uniform Services Former Spouses Protection Act” was included, correctly or incorrectly, and approved by Defendant, as a means of determining the specific amount to be paid by Defendant and not as an award of 1 /3 of his retirement benefits but of an amount equal to 1/3 of benefits received; that failure to denominate such award as “alimony” was and is of no consequence; that no appeal was taken from such award or objection made by Defendant, and he is not now in a position to object to an order made four (4) years previously.
The chancellor granted appellee judgment for $3,012 for past due arrearages, but did not hold appellant in contempt for the nonpayment of this obligation.
As his first issue on appeal, the appellant argues that the chancellor lacked the authority to modify the decree after ninety days pursuant to Ark. R. Civ. P. 60(b). It is the appellant’s contention that the chancellor’s order effectively modified the decree by changing this provision from a division of marital property to an award of alimony. We cannot agree.
Rule 60(b) of the Arkansas Rules of Civil Procedure limits a trial court’s authority to modify a decree to a period of 90 days after it has been filed with the clerk. Reves v. Reves, 21 Ark. App. 177, 730 S.W.2d 904 (1987). However, this rule is not applicable where the court simply attempts to correct the record to more accurately reflect its original ruling. McGibbony v. McGibbony, 12 Ark. App. 141, 671 S.W.2d 212 (1984). Our appellate courts have long recognized the inherent power of the courts of this state to enter orders correcting their judgments where necessary to make them speak the truth and reflect actions accurately. Id. As revealed in his Memorandum Opinion and subsequent order of February 1989, we regard the chancellor’s action as a clarification of the award that was originally intended, and not a modification of the decree. Other than his bare assertion that the provision was a division of his military retirement pay upon divorce, appellant has presented no evidence demonstrating that the chancellor’s interpretation is clearly erroneous. To the contrary, the record reflects that the parties were divorced after a lengthy marriage and the appellee testified that after the divorce she had to go back to school in order to support herself and their daughter. In addition, the amount appellee was to receive is indicative of this intent. The award was calculated as 1/3 of the amounts received, rather than the greater amount represented by 1/2 of a fractional share of the benefits, the method that is typically used when dividing retirement pay as a marital asset. Thus if this had been a division of property, the result would have been an unequal division; the decree is noticeably silent with regard to reasons supporting such a disposition as is required by Ark. Code Ann. § 9-12-315 (Supp. 1989). See Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988).
One seeking the reversal of a chancellor’s decree has the burden of demonstrating error in the chancellor’s findings, and the appellate court will not reverse such findings unless they are clearly against the preponderance of the evidence. Kibler v. Kibler, 27 Ark. App. 77, 766 S.W.2d 938 (1989). Based on this record, we cannot say that the chancellor’s interpretation of the decree is clearly wrong.
Secondly, appellant argues that the chancellor erred in awarding judgment to the appellee for arrearages. In making this argument, the appellant contends, as he did at the hearing, that he has no “disposable retired pay” according to the Uniformed Services Former Spouses Protection Act as his retirement was based on disability. We find no merit in this argument for the reason that the chancellor, in clarifying the decree, determined that the amount of alimony was based on the monthly income that appellant actually received as retirement pay. Appellant did not take an appeal from the decree, and acknowledged at the hearing that this was the amount he had been paying since the decree was entered. Thus, the interpretation of the court was consonant with appellant’s conduct.
Not having appealed from the decision within the time permitted by law, the appellant is not now in a position to complain. Best v. Williams, 260 Ark. 30, 537 S.W.2d 793 (1976). When a judgment becomes final, it is protected by the common law principle of res judicata, and the findings and orders of the decree cannot later be collaterally attacked, even if the judgment is erroneous. Nelson v. Nelson, 20 Ark. App. 85, 723 S.W.2d 849 (1987); Gideon v. Gideon, 268 Ark. 873, 596 S.W.2d 367 (Ark. App. 1980). A decree of alimony is res judicata on the circumstances prevailing at the time of the decree as to everything which might have been litigated when the divorce was granted. Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980).
In this case, the decree was entered on April 4, 1984, and the appellant did not pursue this claim until late in 1986. There was no appeal from that decree which became conclusive except to the extent that changed conditions may have arisen. Neither we, nor the appellant, can now question the propriety of this award or the manner in which the amount of alimony was calculated.
Affirmed.
Jennings and Mayfield, JJ., agree.
We are not unmindful of the Supreme Court’s recent decision of Mansell v. Mansell, 109 S.Ct. 2023 (1989). However, we have respectfully determined that appellant is now precluded from raising these issues by reason of res judicata. | [
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Judith Rogers, Judge.
The appellant, Rose Crosby, who was formerly employed by appellee, Micro Plastics, Inc., appeals from a decision of the Workers’ Compensation Commission which denied her claims for wage loss disability, additional temporary total disability benefits, and the payment of certain medical expenses for treatment. We affirm in part, and reverse and remand in part.
On February 28, 1985, appellant sustained a compensable back injury when she was carrying a fifty pound tray of plastic nuts while employed by appellee. As a result of this injury, appellant was unable to work for three weeks, and temporary total benefits were paid from March 1 through March 25,1985, when she was released by her physician, Dr. Larry Kelley, to return to work with a fifteen pound lifting restriction. Appellee also accepted payment of all medical bills for treatment provided by Drs. Kelley and John Tsang, to whom appellant had been referred by Dr. Kelley. Appellant continued in her employment with appellee until her termination in May of 1986. Appellant is currently unemployed.
In October of 1986, appellant filed a claim with the Commission alleging her entitlement to awards of temporary total benefits which were said to have occurred sporadically since March 1,1985; permanent disability and wage loss benefits; and the payment of medical expenses associated with treatment provided by Dr. Thomas E. Knox and Dr. Wilbur Giles. In an opinion dated May 16, 1988, an administrative law judge awarded appellant permanent partial disability benefits in relation to five percent of the body as a whole, but concluded that appellant was not entitled to wage loss benefits under Ark. Code Ann. § ll-9-522(b) (1987), or further temporary total benefits beyond March 25, 1985. Additionally, appellant’s claim for the payment of medical expenses for treatment by Drs. Knox and Giles was denied based on a finding that she had failed to comply with the requisite procedure for a change of physicians. Upon review by the full Commission, the decision of the law judge was affirmed and adopted on April 13,1989, with one Commissioner dissenting.
As her first issue on appeal, appellant claims as error the Commission’s denial of wage loss benefits based upon the retroactive application of Act 10 of 198 6, now codified as Ark. Code Ann. § ll-9-522(b) (1987). Pursuant to this provision, the Commission concluded that appellant was not entitled to wage loss benefits because she had resumed her job with appellee.
In the recent case of Arkansas State Police v. Welch, 28 Ark. App. 234, 772 S.W.2d 620 (1989), we held that the provision of Act 10, found in the above-mentioned code section, which precludes the recovery of wage loss benefits when the employee “has returned to work, has obtained employment, or has a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than his average weekly wage at the time of the accident,” is substantive in nature, and thus is to be applied prospectively, and not to injuries occurring before the effective date of the act, July 1, 1986. In Welch, we noted that under previous law, a claimant might suffer a wage loss capacity yet return to work earning higher wages than before the injury due to cost-of-living increases. See City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). Here, the appellant’s injury of February 28,1985, occurred before the effective date of the act; therefore, we agree with the appellant that the Commission erred by concluding that her claim for wage loss benefits was barred by Ark. Code Ann. § ll-9-522(b) (1987). Accordingly, we remand to the Commission for a determination as to whether appellant is entitled to wage loss benefits under the law as it existed as of the time of her injury. Inasmuch as we are remanding on this issue, we decline to address appellant’s second argument on appeal in which she further claims entitlement to wage loss benefits.
As her third point on appeal, appellant contends, as stated in her brief, that “[t]he pre-existing degenerative disc disease, if any, did not disqualify a WCC claim if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought.” However, there has been no finding that appellant’s claim was disqualified on this basis, and moreover, appellee has raised no cross-appeal on the question as to permanent impairment.
Appellant next argues that the Commission erred by not allowing the change of physician to Dr. Knox, who referred her to Dr. Giles, thereby relieving appellee of the obligation to pay for medical treatment provided by them, or those under their direction. Based upon the appellant’s testimony that she was initially followed by Dr. Kelley, as he was her private physician, the Commission determined that Dr. Kelley was a physician of her own choosing, and concluded that she was not entitled to the payment of expenses associated with the change of physician for her failure to comply with Ark. Code Ann. § 11-9-514(a)(1) (1987). Specifically, the Commission found that she changed physicians from Dr. Kelley to Dr. Knox without informing either the Commission or appellee, although she had been provided notice of her rights and responsibilities concerning a change of physician as required by Ark. Code Ann. § 1 l-9-514(c)(l) (1987).
Arkansas Code Annotated § 11-9-514(b) (1987) clearly provides that treatment or services furnished or prescribed by any physician other than the one selected according to the outlined procedures, except emergency treatment, shall be at the claimant’s expense. American Transportation Co. v. Payne, 10 Ark. App. 56, 661 S.W.2d 418 (1983). In Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984), we noted that under the present law, the Commission no longer has the broad discretion it once had to retroactively approve a change of physician, and that, absent compliance with § 81-1311 (now codified as Ark. Code Ann. § 11-9-514 (1987)), the employer is not liable for a new physician’s services (emphasis in original). In this case, it is undisputed that the appellant did not request prior approval of the change of physicians and thus failed to comply with the procedures outlined by the statute. Therefore, the Commission did not err by denying her claim for expenses related to the change of physicians.
The appellant last argues that her healing period did not end until Dr. Giles gave her his impairment rating of five percent in 1988, and that she was entitled, to further temporary total benefits. We disagree.
A claimant’s healing period ends when the underlying condition causing the disability has become stable, and if nothing further in the way of treatment will improve that condition. Elk Roofing Co. v. Pinson, 22 Ark. App. 191, 737 S.W.2d 661 (1987). In a workers’ compensation proceeding, the determination of when the healing period has ended is a factual determination that is to be made by the Commission; if that determination is supported by substantial evidence, it must be affirmed on appeal. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).
In the instant case, the record reveals that immediately following her injury in February of 1985, X-rays disclosed no evidence of significant injury. On March 25,1985, appellant was released to return to work by Dr. Kelley with a fifteen pound lifting restriction, and appellant did in fact return and continue to work until her termination in May of 1986. After her termination in 1986, she was followed by Dr. Tsang, who reported that the results of a lumbar myelogram and CT Scan were normal. Also, the results of the CT Scan and myelogram ordered in 1988 by Dr. Giles were normal, which Dr. Giles said was inconsistent with appellant’s symptoms of leg pains. Dr. Giles did opine that appellant had a pre-existing degenerative disc disease at L-5, S-1, which could have been aggravated by the 1985 injury, and he assessed a five percent anatomical impairment rating. Dr. Giles said that he felt surgery was unnecessary, and that the only treatment he would recommend would be occasional physical therapy and mild anti-inflammatory drugs or muscle relaxants. There was evidence that appellant missed a number of days from work after her injury, but the Commission concluded that it was difficult to determine whether her absences were attributable to her compensable injury, as appellant had other medical problems for which she had been treated. For instance, appellant admittedly was absent from work for ten weeks in July of 198 5 when she had surgery. Based on a review of this record, we cannot say that the Commission’s decision that appellant was not entitled to temporary total benefits beyond March 25,1985, is not supported by substantial evidence.
AFFIRMED in part.
REVERSED and REMANDED in part.
Corbin, C.J., and Mayfield, J., agree.
We note that the decision in Welch was an affirmance of the Commission’s interpretation that this provision of Act 10 of 1986 was not to be retroactively applied. We now reverse the instant case because the Commission did not follow its own interpretation of the law which we previously affirmed in Welch. | [
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Judith Rogers, Judge.
In this appeal, the Consumer Utilities Rate Advocacy Division of the Attorney General’s Office has raised numerous objections to a ratemaking decision of the Arkansas Public Service Commission (Commission) that granted an increase in operating revenues to Arkansas Louisiana Gas Company (ALG). We conclude that, with respect to all issues, as the decision of the Commission was not unreasonable, arbitrary, or capricious, was based on substantial evidence, and as the Commission adequately explained the reasons for its decision, the Commission’s orders must be affirmed.
ALG is a natural gas distribution division of Arkla, Inc., (now NorAm Energy Corporation), which serves more than 400,000 residential, commercial, and industrial customers through facilities in Arkansas. By an application filed with the Commission on April 9, 1993, ALG sought $15.5 million in additional revenues. Participants in the docket established by the Commission included the Attorney General, the general staff of the Commission (Staff), Arkansas Gas Consumers (AGC), Arkansas Power & Light Company, Premier Gas Company, and Vesta Energy Company. Numerous issues were raised and discussed in direct, rebuttal, and surrebuttal testimony filed by the parties. The Attorney General contended that ALG was over-recovering and proposed that ALG’s rates be adjusted to eliminate revenue excess of $786,000.00. Staff recommended that ALG be allowed to recover $1,588,505.00 in additional revenues, and AGC recommended $10,196,230.00 in additional revenues. Prior to the hearing, which began on November 8, 1993, ALG reduced its requested rate increase to $12,573,584.00.
In Order No. 13, filed February 9, 1994, the Commission granted ALG additional revenues of $5,538,900.00, reflecting a total revenue requirement of $312,717,929.00. In Order No. 15, filed on April 11, 1994, the Commission corrected a discrepancy in its calculation of ALG’s revenue requirement related to the application of the weighted cost of debt used in the income tax calculation that resulted in an overstatement of ALG’s revenue requirement by $546,430.00. ALG was directed to file tariffs to recover additional revenues of $4,992,470.00, based on the adjusted revenue requirement of $312,171,499.00. Petitions for rehearing of the Commission orders were denied. On May 11, the Attorney General filed a notice of appeal from Orders No. 13 and 15.
SCOPE OF REVIEW
This court’s review of Commission orders is limited and governed by Arkansas Code Annotated § 23-2-423(c) (Supp. 1993), which states in pertinent part:
(3) The finding of the commission as to the facts, if supported by substantial evidence, shall be conclusive.
(4) The review shall not be extended further than to determine whether the commission’s findings are supported by substantial evidence and whether the commission has regularly pursued its authority, including a determination of whether the order or decision under review violated any right of the petitioner under the laws or Constitution of the United States or of the State of Arkansas.
In Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 24 Ark. App. 142, 751 S.W.2d 8 (1988), this court stated:
The Commission has wide discretion in choosing its approach to rate regulation, and we do not advise the Commission as to how to make its findings or exercise its discretion. Only if we find the findings of the Commission to be unsupported by substantial evidence or that the Commission has abused its discretion may we reverse. Federal Power Comm’n v. Hope Natural Gas Co., 320 U.S. 591 (1944); General Tel. Co. of the Southwest v. Arkansas Pub. Serv. Comm’n, 23 Ark. App. 73, 744 S.W.2d 392 (1988); Walnut Hill Tel. Co. v. Arkansas Pub. Serv. Comm’n, 17 Ark. App. 259, 709 S.W.2d 96 (1986). The Public Service Commission is free, within the strictures of its statutory authority, to make the pragmatic adjustments which may be called for by particular circumstances. No public utility has an absolute right to any method of valuation or rate of return, and the PSC has wide discretion in its approach to rate regulation. This court is generally not concerned with the method used by the Commission in calculating rates as long as the Commission’s action is based on substantial evidence. It is the result reached, and not the method used, which primarily controls. If the Commission’s decision is supported by substantial evidence and the total effect of the rate order is not unjust, unreasonable, unlawful or dis criminatory, judicial inquiry terminates. Southwestern Bell, 19 Ark. App. at 327, 720 S.W.2d at 927; Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 18 Ark. App. 260, 715 S.W.2d 451 (1986); Walnut Hill Tel., 17 Ark. App. at 265, 709 S.W.2d at 99.
24 Ark. App. at 144.
The Attorney General’s arguments on appeal involve the consideration of:
(1) Plant-in-service;
(2) Construction work in progress;
(3) Incentive award payments;
(4) Mobile dispatching system expenses;
(5) Insurance costs;
(6) Ad valorem taxes;
(7) Allocation of the cost of distribution mains; and
(8) Allocation of the increase in revenues among customer classes.
Plant-In-Service
The Attorney General first argues that the Commission erred in allowing ALG’s projected plant additions and retirements, as adjusted by Staff, to be included in the calculation of rate base without requiring that the impact of those additions and retirements also be included. The Attorney General contends that to include the plant changes without including their resulting effects would be in violation of Arkansas Code Annotated § 23-4-406 (1987) and the “test year matching principle,” i.e., the principle that expenses and revenues should be measured within the same time period. Section 23-4-406 provides:
For the purpose of justifying the reasonableness of a proposed new rate schedule, a utility may utilize either an historical test period of twelve (12) consecutive calendar months or a forward-looking test period of twelve (12) consecutive calendar months consisting of six (6) months of actual historical data derived from the books and records of the utility and six (6) months of projected data which together shall be the period or test year upon which fair and reasonable rates shall be determined by the Arkansas Public Service Commission. However, the commission shall also permit adjustments to any test year so utilized to reflect the effects on an annualized basis of any and all changes in circumstances which may occur within twelve (12) months after the end of the test year where such changes are both reasonably known and measurable.
Pursuant to § 23-4-406, ALG based its application on a test year ending June 30, 1993, with the pro forma year ending twelve months later, June 30, 1994.
The Attorney General contends that to include the plant changes in rate base without establishing the known and measurable status of the changes is error. He maintains that plant additions and retirements can never be included in rate base because changes in customer growth and usage, or any changes in operating and maintenance expenses that will result, cannot be measured and therefore cannot be determined with certainty. He contends that because these are matters not within the control of the company, they cannot be predicted.
David E. Peterson, public utility rate consultant, testified for the Attorney General as follows:
To accurately measure a utility’s income producing capability under its present or proposed rates, one must first properly match sales volumes, revenues, expenses, and plant investment used to generate those revenues and expenses. The desired matching is achieved through the use of a consistent test period. The important point is that sales, revenues, expenses, and investment all be measured at or during the same time period. This matching principle is fundamental to both accounting and ratemaking. The matching principle is violated, however, the moment we step outside of the test period to measure one element of the revenue requirement equation without similarly adjusting all other elements.
Peterson contended that ALG’s 1994 customer growth adjustment was speculative because it was based on a forecast of cus tomer additions through the rate year. He stated that “[e]ven if we could verify all of ALG’s rate base additions, there is no commitment on the customers’ behalf to join the system as ALG projected or to exhibit the usage behavior that the Company expects.” It was his position that, for the most part, plant additions will either generate additional revenue for ALG or will result in operating or maintenance expense reductions, and that the precise and comprehensive effects of those future changes in operations could not be determined with reasonable precision.
The Commission acknowledges that it is obligated to adjust the test year data for known and measurable changes where the changes are shown to be reliable and to reflect adjustments for both revenues and expenses. It maintains that any growth has been taken into account in the calculation of present rate revenues and further maintains that the Attorney General offered no evidence, other than Peterson’s speculation, to show that any operation or expense reductions will result directly from the addition of plant-in-service. The Commission concludes that “[sjuch speculation on the part of the Attorney General’s witness is simply insufficient to warrant disallowance of the proposed adjustment for known and measurable changes in plant-in-service occurring within the pro forma year.”
The Attorney General contends, however, that the changes to plant-in-service are not “measurable” because they cannot be determined with certainty. Attorney General witness Peterson defined “measurable” as the ability to determine with reasonable precision the complete impact that the change will have on operating results.
In support of his argument, the Attorney General cites Southwestern Bell Telephone Co. v. Arkansas Public Service Commission, 18 Ark. App. 260, 715 S.W.2d 451 (1986), where this court addressed similar challenges to proforma adjustments and held that known and measurable adjustments that affect test year data are proper if they can be determined with certainty. 18 Ark. App. at 270. There, Southwestern Bell argued that the Commission erred in disallowing repression adjustments that were based on the theory that, as the price of a service increases, the quantity of service demanded decreases, and therefore, a price increase is usually accompanied by a decrease in revenues realized from the sale of the service. Although the Commission acknowledged that repression occurs, (i.e., it is “known”), it held that the evidence did not demonstrate that repression’s effects could be measured with the degree of accuracy sufficient to satisfy the “measurable” standard of § 23-4-406. 18 Ark. App. at 270-71. The Commission noted that the calculations “do not take into account the expense savings associated with a decline in calling volumes, nor did they account for a number of other factors, including ‘overpays,’ which could affect the level of revenues recovered.” 18 Ark. App. at 271. We affirmed the Commission’s disallowance of the adjustment.
In that same case, however, we also affirmed the Commission’s allowance of a pro forma adjustment imputing to Southwestern Bell the revenues and expenses associated with Yellow Page operations of a related company for both the test year and the pro forma year. Southwestern Bell had objected to the inclusion of the proforma year revenues and expense increases, contending that they were not known and measurable. Southwestern Bell argued that the adjustment “would depend on the level of advertising purchased by Yellow Page customers as well as other factors including customers’ perceptions of the effectiveness of the advertising, the growth of competition, the general state of the economy, interest rates, and tax changes affecting disposable income.” 18 Ark. App. at 272. We noted, however, that the Commission had found the adjustment was based on reliable data supplied by Southwestern Bell and stated that from our review of the record, we could not say that the Commission’s finding that the adjustment was reasonably known and measurable within the guidelines of § 23-4-406 was not supported by substantial evidence. Id.
The relevant portion of § 23-4-406 provides that the Commission shall permit adjustments to any test year “to reflect the effects on an annualized basis of any and all changes in circumstances which may occur” within th t pro forma year “where such changes are both reasonably known and measurable.” Certainly, known and measurable post-test-year changes that affect the test year data “with certainty” are proper considerations. The inquiry here is whether a complete change was considered or whether only one aspect of the change was considered.
ALG responds that the record supports a finding that oper ating expenses and revenues were calculated during the same period and states: “Operating revenues were projected for the pro forma year . . . with the aid of growth calculations to customer class billing determinants by Staff and [ALG]. Likewise, changes in [ALG] operating expenses during the proforma year . . . were quantified and presented by Staff and [ALG].” ALG also points out that changes in plant additions and retirements do not necessarily increase operating revenues and decrease expenses.
The Commission relied on evidence that ALG adjusted rate base, revenues, and expenses, and that they were all measured at or during the same time period. The evidence included numerous studies and graphs prepared to aid in the determination of the proper billing determinants. In its order, the Commission found that revenues had been adjusted for growth, “thereby negating” the argument that the matching principle had been violated. We find that the adjustment to plant-in-service meets the required level of “certainty,” as outlined by this court in Southwestern Bell, supra, and the principles established in that case. We cannot say the Commission’s finding is not supported by substantial evidence.
We do not find persuasive the Attorney General’s argument that matters not completely within the control of the company cannot be measured. Utility ratemaking is an inexact art and of necessity involves judgment calls and educated surmise from time to time. Contel of Arkansas, Inc. v. Arkansas Pub. Serv. Comm’n, 37 Ark. App. 18, 22, 822 S.W.2d 850 (1992). It seems logical that analytical studies, historical data, and expert projections often must provide the basis for certain components of ratemaking.
Construction Work in Progress
The Attorney General’s next argument concerns the method by which ALG will recover debt interest and a reasonable equity return on construction capital. The two approaches to this recovery have been discussed, as follows:
One method capitalizes the carrying charges incurred during the construction period as allowance for funds used during construction (AFUDC). AFUDC is recorded part as current income, part as an offset to interest expenses, but no cash payments are made by ratepayers during construction. The payments from ratepayers to recover the carrying charges begin when the completed plant [is in service]. The entire cost of the plant (including AFUDC) is added to rate base, and it earns a rate of return on investment and is depreciated over the life of that plant. The second method is to include construction work in progress (CWIP) in the rate base. (CWIP includes accrued AFUDC on investment not in rate base.) The regulatee recovers its carrying charges currently from ratepayers through the return component of its rates, rather than adding them to the cost of construction for recovery when the plant is in service. The return on CWIP is recorded as income on a current basis (like AFUDC), and actual cash payments are made by the ratepayers currently (unlike AFUDC).
Although each method is intended to provide an opportunity to recover the carrying charges, they differ primarily according to when the investment is permitted in rate base, i.e., when the carrying charges are reflected in the cost of service and thus in rates charged to ratepayers. The courts generally defer to the regulatory agency’s choice of methods.
James C. Bonbright, Albert L. Danielsen, David R. Kamerschen, Principles of Public Utility Rates 246 (2d ed. 1988).
At the hearing, the. Attorney General recommended the removal of ALG’s requested allowance for construction work in progress (CWIP) from the rate base calculation, on the grounds that its inclusion would require current customers to pay for facilities that will benefit only future customers. The Attorney General offered an alternative means of achieving the proper match of customers and benefits through the testimony of Attorney General witness Peterson:
ALG is adequately compensated for its carrying costs on construction projects when it capitalizes an appropriate [AFUDC]. Thereafter, once the plant becomes operational, the Company will be able to recover its construction period costs, including all accumulated AFUDC, through the annual depreciation allowance over the useful life of the facilities. In that way, the appropriate match between service cost and service beneficiaries is achieved. This important match cannot be achieved, however, when CWIP is included in rate base.
ALG responds that its requested allowance for CWIP was in keeping with Commission precedent and was accepted by Staff. ALG witness Mickle explained:
First, Mr. Peterson has missed an overall principle of the modified balance sheet approach (MBSA) in determining a company’s working capital requirements. This principle states that assets that are not interest bearing and not considered elsewhere in the cost of service, are to be included in rate base. The CWIP that ALG is using in working capital assets . . . meets each of these requirements. Second, Mr. Peterson has overlooked the fact that customers who will receive the service benefits from CWIP are ALG’s present and near future customers since ALG’s construction projects are almost entirely short-term in nature, some being completed within a few days’ time. By including CWIP in rate base, the customers who will receive benefits from the construction projects are the same customers who will pay for them. Third and last, Mr. Peterson has failed to recognize that all CWIP does not accrue AFUDC and therefore ALG would not be adequately compensated for its carrying costs on all construction projects. AFUDC is accrued only on nonpurchase jobs over $5,000. The amount of CWIP that does not accrue AFUDC should be included in working capital assets to achieve the appropriate match between service cost and service beneficiaries.
In Order No. 13, the Commission approved the allowance of CWIP in rate base as consistent with the MBSA and the principle that the customers who receive the benefits are the same as those who will pay for them.
On appeal, the Attorney General argues that the Commission’s finding in this regard is not supported by substantial evidence and is inconsistent with the supreme court’s ruling in Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm’n, 226 Ark. 225, 289 S.W.2d 668 (1956). In that case, the Commission refused to allow the amount over the test period that had been invested in CWIP and was not revenue-producing. The supreme court affirmed the Commission, stating that to include the plant under construction in electric plant in calculating the rate base “would result in distortion because the Company would be permitted to earn a return on that property before it is useful in providing utility service and before the full influence of the property on revenues and expenses has been felt.” 226 Ark. at 230. ALG responds that the Attorney General’s reliance on the above case is misplaced, arguing:
[Ejlectric utility CWIP and gas utility CWIP are vastly different. Electric utility CWIP involves generating and transmission facilities that take years to complete, whereas gas utility CWIP involves pipeline installations that are completed in less than a year. Consequently, gas utility CWIP, such as that included in Arkla’s cash working capital assets, involve capital improvements that will be used to provide service to current ratepayers at the time rates (reflecting the CWIP) are in effect.
Although we agree that, historically, CWIP has not been included in current rate base, we are mindful of the changes in the utility industry since the 1970s that have resulted in many commissions allowing all or part of CWIP in rate base in varying amounts and under varying conditions. See James C. Bon-bright, Albert L. Danielsen, David R. Kamerschen, Principles of Public Utility Rates 246-253 (2d ed. 1988); and Charles F. Phillips, Jr., The Regulation of Public Utilities 354-55 (3d ed. 1993). We do not find it necessary, however, to examine those trends to affirm the Commission’s finding in the case at bar. The theory advanced by the Attorney General assumes that the utility has a different customer base during the CWIP phase than during the operating phase. The record here refutes that assumption and demonstrates that the construction projects in issue are mostly small projects of short duration.
The scope of our inquiry in reviewing a decision of the Commission clearly is limited. The Commission has wide discretion in choosing its approach to rate regulation, and this court on appeal is generally not concerned with the methodology used by the Commission, as long as the Commission’s action is based on substantial evidence. Here, we find that there is substantial evidence to support the Commission’s finding.
Incentive Award Payments
The Attorney General next argues that the Commission erred in allowing a projected $541,000.00 in incentive award payments to be included in ALG’s expense calculation. These payments are the result of a program offered by ALG to certain employees whereby the employees receive a base salary plus a salary “at risk,” which is measured by shareholder return, earnings per share, net cash flow, and total return on capital. The Attorney General contends that this expense is incurred primarily for the benefit of shareholders and not the ratepayers. He argues that the ratepayers are in a no-win situation because if the payments are made, only the shareholders will benefit from the increased earnings but if payments are not made (and the salaries are lower), the ratepayers receive no benefit, e.g., lower rates or better service. The Attorney General further argues that Attorney General witness Peterson’s testimony presented sufficient analysis to support exclusion of the payments.
Peterson admitted that many utilities were moving from fixed salaries as the sole means of compensating managers and executives, to more performance-driven compensation and that incentive awards are an important management tool for employee motivation. Nevertheless, he stated that regulators should examine whether the bases for the awards are consistent with ratepayer interests:
ALG’s incentive payments for example are designed to increase Arkla, Inc.’s shareholder wealth and are based on financial, operational, and individual performance goals which include company and divisional operating income. Income and return goals are not consistent with providing service at the lowest possible cost to ratepayers. In fact, there is an incentive to artificially inflate rate increase requests and to maintain excessive rate levels.
Peterson recommended that ALG ratepayers should not be. required to pay for incentive awards because investors are the primary beneficiaries when executives achieve the performance targets.
L. Dale Norwood, ALG manager of cost recovery, testified that the focus of the Commission’s inquiry should be the reasonableness of the result, regardless of the method used to calculate the compensation (base salary plus salary at risk). He stated that ALG annually prepares an analysis of total employee cash compensation for each program participant and then compares the results with recent surveys of gas industry compensation for similar positions. Norwood presented an exhibit demonstrating that ALG’s total employee cash compensation, both in the aggregate and for each position in 1993, was within the levels reported in the 1992 gas industry survey. He also denied that the focus of the programs was on shareholder values and stated:
The methodology used to determine the amount of each employee’s salary at risk does consider ALG’s return on capital, operating income and net cash flows, as well as Arkla, Inc.’s total shareholder and ratepayer values. As a general rule, in order to achieve higher earnings, ALG management must do one or both of two things: lower costs of service and/or increase the total sales (or number of customers). Likewise, in order for ALG to achieve lower rates for customers, ALG management must lower costs and/or increase the total number of customers over which such costs are spread. Accordingly, I believe the incentive performance factors . . . consider shareholder and ratepayers concerns alike.
We find that the Commission had before it substantial evidence demonstrating that the requested adjustment for employee compensation was within the range of expert testimony and levels reported in the gas industry and that the incentive performance factors consider both shareholder and ratepayer concerns. We find no basis for concluding that the result of the Commission’s finding was unjust or unreasonable.
Mobile Dispatching Systems Expenses
The Attorney General also objects to the proforma adjustment allowed for the operating expenses associated with the mobile dispatching (MDI) systems that improve the efficiency of ALG’s service personnel. The Attorney General does not dispute the Commission’s finding that ALG presented sufficient cost evidence but argues that the expected efficiency gains are not quantified and included in ALG’s revenue requirement calculation, as required by § 23-4-406. This section provides in part that “the Commission shall also permit adjustments to any test year so utilized to reflect the effects on an annualized basis of any and all changed circumstances which may occur within twelve (12) months after the end of the test year where such changes are both reasonably known and measurable.” Attorney General witness Peterson testified that the efficiency gains or savings resulting from the MDI systems should be applied as an offset to ongoing operating costs.
ALG witness Norwood responded that the systems resulted in improved productivity and reduced labor expense. He stated that the number of employees was the lowest in several years and that the improved productivity provided by the operation of the new systems helps ALG maintain its high level of service at a relatively low cost to the customer. Norwood concluded that these costs met the “known and measurable” requirement.
Although there was no specific study of the effects of the system, we agree that ALG presented evidence that the efficiencies of the system allow ALG to maintain a previously accounted for reduction in employees, thereby avoiding employee costs. We find that the adjustment is supported by substantial evidence and the result is neither unfair nor unreasonable.
Insurance Costs
In addition, the Attorney General objects to the $190,014.00 pro forma adjustment in insurance costs. He contends that the adjustment is speculative and, therefore, not known and measurable.
ALG based its adjustment on an analysis prepared by Ark-la’s insurance consultant, Marsh & McLennan. The Commission found that there was supporting documentation for the increase in costs and that the increase represented a known and measurable change in costs. The Attorney General argues on appeal that the following language from the analysis confirms that the adjust ment is based solely on speculation: “Due to the volatile nature of casualty losses, the strategic economic evaluation group cannot guarantee Arkla’s ultimate losses will equal these estimates. However, we do believe the results are derived in a reasonable manner based upon the available data.” ALG responds that the adjustment was derived in a reasonable manner and satisfies the requirements of § 23-4-406.
The Attorney General’s argument is not an assertion of fact but is speculation. The Commission had the benefit of a detailed analysis that provided substantial support for the adoption of this adjustment. We find that the general disclaimer included in the report does not prevent the analysis from meeting the required level of certainty. We cannot say this adjustment is not reasonably known and measurable under the guidelines of § 23-4-406.
Ad Valorem Taxes
The Attorney General next argues that the Commission erred in granting ALG’s requested allowance for ad valorem taxes. In its application, ALG adjusted its ad valorem taxes for the pro forma year to reflect its requested increase to plant-in-service. The Attorney General contends that because ALG’s projections of future costs are unverifiable, the pro forma adjustment is speculative and, therefore, not known and measurable.
We have affirmed the adjustment to plant, and ALG is entitled to recover the ad valorem taxes that will be levied on the proforma plant additions. The tax rates used to calculate this adjustment were in effect at the time of the hearing. ALG witness Norwood testified that there was no reason to believe that the tax level would decrease materially in the proforma year and proposed that Staff’s ad valorem adjustment be adopted. This adjustment is known and measurable under our guidelines. The Attorney General presented no evidence to show that the tax rates would change but only speculated that they might change. Under the broad powers conferred upon the Commission, we do not find the Commission’s action an abuse of discretion.
Allocation of the Cost of Distribution Mains
The Attorney General also argues that the Commission erred in accepting ALG’s allocation of the cost of distribution mains because the Commission arbitrarily accepted an allocation methodology that the Commission had already recognized as being incorrect.
In allocating this cost, ALG applied the minimum size distribution theory, which recognizes that a minimum size main is necessary in any distribution system, regardless of peak demands or annual throughput. ALG used a main two inches or less in diameter, and the associated facilities, as the minimum size and allocated that plant among customer classes on customer number. The remaining cost of mains was allocated among customer classes on the basis of peak demand. AGC supported ALG’s proposed cost allocation method. The Attorney General contended, however, that ALG’s methodology allocated too much of the cost to residential and small business customers. He advocated allocating 50% of the costs on annual throughput and 50% on demand to recognize that a distribution system is designed to provide both commodity and demand. Staff proposed allocating mains on a density of customer factor and an average and peak cost allocation factor.
The parties presented considerable evidence through witnesses and studies in regard to this issue. Basil L. Copeland, Jr., an economist specializing in energy and utility economics who testified for the Attorney General, described the minimum size distribution system as “at best a polite fiction that has little or no relevance to assigning costs according to the actual factors that determine total system demand or volume.” It was his opinion that the minimum distribution system concept mistakes intermediate product for final product and that it was doubtful that anyone would actually purchase such a product. Copeland testified that what customers purchase are peak-day demands and annual volumes. He also questioned why ALG had not used one-inch mains or one-half-inch mains but stated that the problem really is that there is no pipe so small that it will not supply at least some demand or capacity.
David Sullins, vice president of rates for ALG, responded that Copeland’s approach ignored the realities of the system; first, that smaller consumption classes like the residential class use and are responsible for far more of the distribution grid than larger customers, and second, that ALG serves a considerable number of residential customers in rural areas, which results in a high ratio of pipe investment per customer. Sullins admitted that ALG’s method was not perfect but argued that at least it recognized some measure of this cost differential and thus is more precise than demand or volume methods. He also contended that the cost of pipe had no relationship to annual throughput. Richard A. Baudino, a utility rate and economic consultant testifying for AGC, recommended that the Commission approve ALG’s allocation of distribution mains.
In its order, the Commission rejected Staff’s approach, finding that further study was necessary before customer density factors could be properly developed. In discussing the Attorney General’s approach, the Commission stated: “[T]he AG’s approach ignores reality by dismissing the customer related costs of distribution mains. While the Commission does not necessarily disagree with the Attorney General that some smaller size distribution main may be more appropriate in determining the minimum distribution system, no party has adequately justified such a proposal.” The Commission adopted ALG’s allocation for purposes of this docket only.
On appeal, the Attorney General argues that the Commission was required to reject ALG’s allocation method for two reasons: first, because ALG’s witness testified on cross examination that perhaps a smaller-sized pipe could be used as the minimum size and that such a system of two-inch mains or less would never exist; and second, because the Commission found that a smaller size distribution main might be more appropriate. The Attorney General argues that the Commission’s act of approving the allocation that the Commission itself had stated was not appropriate was “the quintessential example of an arbitrary, unwarranted abuse of discretion.” It is his position that, although the Commission was obligated to reject ALG’s allocation, it was not obligated to accept the Attorney General’s methodology. The Attorney General contends that the Commission could have chosen a smaller size pipe to determine the minimum system or could have held a limited hearing on the issue. He requests that we remand the issue to the Commission for the determination of a more appropriate method of allocating the costs.
The Attorney General’s argument disregards our scope of review. The question on review of an administrative board’s decision is not whether the evidence would have supported a contrary finding but whether it supports the finding that was made. AT&T Communications of the Southwest, Inc. v. Arkansas Pub. Serv. Comm’n, 40 Ark. App. 126, 131, 843 S.W.2d 855 (1992).
In determining the appropriate methodology to be applied in allocating this cost, the Commission gave careful and deliberate consideration to the competing claims and conflicting testimony. It is also appropriate to recognize the Commission’s experience, technical competence, and specialized knowledge in this area, and the discretionary authority conferred upon the Commission. The Commission has approved the methodology in issue in prior rate cases, and the record supports the appropriateness of continuing to recognize the reality of ALG’s system by allocating the mains on the basis of customer number and peak demand. A fair reading of the Commission’s order does not support the Attorney General’s contention that the Commission found ALG’s proposed methodology incorrect or inappropriate. The Commission simply recognized that, although the use of a smaller main “may be more appropriate” in determining the minimum distribution system to allocate among customer classes on customer number, no party had adequately justified such a proposal in this proceeding. The Commission, of course, remains free to adopt a different approach when presented with a record supporting that approach.
As the trier of fact in rate cases, it is within the province of the Commission to decide on the credibility of witnesses, the reliability of their opinions, and the weight to be given their evidence. The Commission is never compelled to accept the opinion of any witness on any issue before it, nor is the Commission bound to accept one or the other of any conflicting views, opinions, or methodologies. General Tel. Co. of the Southwest v. Arkansas Pub. Serv. Comm’n, 23 Ark. App. 73, 83, 744 S.W.2d 392 (1988). Clearly, the record supports the finding that was made, and the Commission did not abuse its discretion in adopting two-inch mains and the associated facilities as the minimum size.
Allocation of the Increase in Revenues Among Customer Classes
The Attorney General’s final argument is that the Commis sion erred in adopting the rate design methodology proposed by ALG to apportion the total rate increase to customer classes. ALG proposed holding the rates of the industrial and large commercial customers level and collecting the increase in revenues from the residential and small commercial customers in order to minimize the risk of bypass.
The threat of bypass has only recently become a significant issue in the natural gas industry. Restructuring in the natural gas industry has changed the function of both local distribution companies (LDCs), such as ALG, and interstate pipelines. Traditionally, LDCs and the pipelines provided service in the same service area with the pipeline engaging in the transportation and wholesaling of natural gas and the LDC providing the retail distribution and sale of the gas. Pursuant to the Federal Energy Regulatory Commission’s (FERC’s) recent pro-competitive “open access” policy, LDCs and consumers may now purchase spot-market gas or gas directly from producers and purchase transportation from the interstate pipelines. Transportation has become a significant part of the interstate pipeline’s business. Because the LDC maintains the only gas lines connecting an industrial consumer with the pipeline, LDCs have been encouraged to unbundle their services in order to transport gas owned by industrial consumers. A consumer may bypass the LDC, however, by constructing its own lines for local transportation. Bypass of a regulated utility may result in stranded investment, duplicative facilities, and higher rates for remaining customers. In a prior proceeding, the Commission discussed the effects of bypass as follows:
When larger customers abandon the LDC, the LDC may attempt to shift the resultant lost contribution to its fixed costs to those core customers who cannot afford the option of bypass. We see this as potentially disastrous for the LDC and its core customers and, perhaps, ultimately disastrous even for the bypasser. If bypass is no longer economically advantageous, the bypasser may not have a viable LDC system to which it may return.
Re Transportation, Bypass, and Standby Service in the Natural Gas Industry, 84 PUR 4th 646, 649 (1987).
Michael H. Means, president and chief operating officer of ALG, discussed ALG’s proposal as follows:
Consistent with the result in Docket No. 92-032-U, our proposed rate design does not increase rates to those customer classes where bypass, due to its relative ease and economy, is a very real concern. In our previous rate case these classes were allowed rate decreases in order to make substantial movement towards ending inter-class subsidies and equalizing rates of return among customer groups. In this case we propose to continue movement toward that goal by holding the rates for those classes constant. . . . [T]his still does not eradicate the subsidy, but we believe it does minimize the risk of bypass with its attendant adverse impact on all customers.
R. Todd Cooper, manager of pricing and economic analysis for ALG, presented ALG’s cost-of-service study, which he stated demonstrated that ALG’s largest gas customers continue to subsidize the smaller gas customers. AGC witness Baudino testified that ALG’s cost-of-service study provided a reasonable basis for evaluating the relative levels of cost responsibility and rate performance between the rate classes. He presented a chart demonstrating that all industrial and commercial classes support relative rates of return substantially above a 1.0 risk multiplier, indicating that they are paying significant subsidies to the residential classes, and he recommended that the subsidies be reduced by 50%. Donna Campbell, Staff senior gas analyst, testified that, “because of the intertwining of the ALG system and its sister pipeline Arkla Energy Resources Company, some of ALG’s customers are located very close to a pipeline making bypass economically feasible for certain customers.”
ALG filed under seal a study of bypass capability of industrial customers. The study shows the costs that could be avoided by such customers, calculated in terms of distance from the pipeline, estimated costs of construction and finance, and the relevant payback period. ALG witness Sullins pointed out that the study shows “there are numerous examples in which large customers need not ‘bear’ even our present rates.” He stated that several members of AGC had individually performed bypass analyses that suggest the same conclusion.
The Commission agreed with ALG that the threat of bypass by ALG’s larger customers is a consideration in designing rates and found that ALG’s approach to rate design achieved an appropriate balance of economic principles and customer impact considerations.
The Attorney General, however, argues that “the larger customers are riskier (because, as ALG claims, they might bypass the company) and therefore should contribute a higher rate of return to the company.” He recommends that the larger users be assigned a rate of return multiplier of 2.0, the small commercial users a 1.0 multiplier, and the residential users the residual revenue requirement.
AGC responds that residential and small commercial customers contribute just as much, if not more, to ALG’s business risk. AGC contends that “[i]t would not be wise public policy to implement the Attorney General’s ‘riskiness’ theory even if large customers did contribute more to ALG’s business risk. A pragmatic problem with the theory is that, if adopted, it would become a self-fulfilling prophecy.”
We discussed relative risks among customer classes as the bases for the apportionment of a rate increase in Arkansas Electric Energy Consumers v. Arkansas Pub. Serv. Comm’n, 20 Ark. App. 216, 727 S.W.2d 146 (1987). We pointed out that “risk multipliers” attempt to quantify the relative risk of customer classes as compared to each other and to adjust upward or downward the rates a customer class pays as a result of its own relative risk. We noted that historically the Commission had recognized risk differentials among customer classes and had adopted higher risk multipliers for industrial and commercial classes and lower risk multipliers for residential customers. We also noted, however, that the Commission had stated that “because of the inherent problems involved with the measurement of those risks,” it was pursuing a “general policy of ‘gradual’ movement toward equality of risk multipliers, i.e., to move all risk multipliers toward 1.0” and that the record indicated some progress had been made in that regard. 20 Ark. App. at 221. We recognized that a cost-of-service study is merely one tool that may be used in rate-design determinations and that noncost factors could also be taken into consideration. 20 Ark. App. at 222. In affirming the Commission’s findings, we recognized that there was ample authority for a rate-making agency to establish different rates for different classes of customers. We stated that different rates are certainly related to the cost of service but “that concept involves a ‘myriad of facts’ and other considerations are also proper.” 20 Ark. App. at 224.
Arkansas Code Annotated § 23-3-114 (1987) provides in part:
(a)(1) As to rates or services, no public utility shall make or grant any unreasonable preference or advantage to any corporation or person or subject any corporation or person to any unreasonable prejudice or disadvantage.
(2) No public utility shall establish or maintain any unreasonable difference as to rates or services, either as between localities or as between classes of service.
(c) The commission may determine any question or fact arising under this section.
The supreme court has stated that the above statute does not prohibit differences in rates, but only prohibits rate differences that are unreasonable. See Wilson v. Arkansas Pub. Serv. Comm’n, 278 Ark. 591, 594, 648 S.W.2d 63 (1983).
It is a function of the Commission to determine the relative weight to accord the various factors that it considers in the ratemaking process. The Commission’s order reflects that it gave careful consideration to the testimony, cost studies, and recommendations presented by the parties. The Commission acknowledged the importance of cost of service as a criterion in the process, and it also recognized the previously stated need for a gradual movement towards eliminating interclass subsidies to prevent bypass and its attendant consequences. The Commission ultimately concluded that the allocation approved in this proceeding did not unreasonably discriminate against the residential customers.
Here, the Commission not only balanced both cost and noncost factors but also made choices among public policy alternatives. We find that the Commission’s decision has not been shown to be in excess of statutory authority or to result in unjust, unreasonable, or discriminatory rates.
Although we have found that the record in this case supports collecting the approved increase in revenues from the residential and small commercial customers, this opinion should not be read as advocating an inexorable march towards the application of a 1.0 risk multiplier to all classes. Retaining the system’s industrial customers is an important goal. Nevertheless, all interests must be balanced to ensure that the system remains viable not only for the larger customers but also for the smaller customers. The LDC also must share some responsibility in balancing the interests. Where the LDC can be shown to have lost the contributions of industrial customers through imprudent judgments, LDC shareholders, rather than ratepayers, may be made to bear the consequences of the LDC’s inability to handle competition. See Associated Gas Distrib. v. Federal Energy Regulatory Comm’n, 824 F.2d 981, 1036 (D.C. Cir. 1987), cert. denied, 485 U.S. 1006 (1988). We are confident that the Attorney General will continue to provide aggressive representation for Arkansas ratepayers in this regard.
Based on the record before us, we affirm the Commission’s orders.
Affirmed.
Cooper, L, not participating.
Billing determinants define the expected units of consumption by each customer class over which each customer class’s total cost responsibility is spread and thereby determine the applicable rate. Inappropriate billing determinants can result in the over- or undercollection of revenues, and the parties and the Commission devoted considerable time and study to this determination. | [
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John E. Jennings, Chief Judge.
This is a child custody case. Michael and Jean Larson were married in 1979. They had two children, “Mikey” and Mindy. In 1988 the parties divorced and Mrs. Larson was awarded primary custody of the children.
In May of 1989, Mrs. Larson filed a petition for citation for contempt alleging that Mr. Larson was then living with his girlfriend in an “immoral relationship” and that his exercise of his visitation rights in his home was contrary to the best interest of the children. Consequently, the chancery court entered an order directing Mr. Larson not to exercise his visitation rights while living with his girlfriend.
In December 1992, by agreement of the parties, Mikey went to live with his father. In May 1993 Mr. Larson filed a petition to obtain custody of both children. In June 1993 Mrs. Larson and her lover, Sherry Callendar, applied to the Benton County Clerk for a marriage license and it appears that the clerk refused to issue the license.
After holding hearings in July and August of 1993, the chancellor entered an order changing primary custody of both children to the father. Mrs. Larson now appeals. We find no reversible error and affirm.
In chancery cases we review the evidence de novo, but we do not reverse the decision of the chancellor unless it is shown that his decision was clearly contrary to a preponderance of the evidence. Thigpen v. Carpenter, 21 Ark. App. 194, 730 S.W.2d 510 (1987). In child custody cases we give special deference to the superior position of the chancellor to evaluate the witnesses, their testimony, and the child’s best interest. See Anderson v. Anderson, 43 Ark. App. 194, 863 S.W.2d 325 (1993). In custody cases the primary consideration is the welfare and best interest of the children involved; other considerations are secondary. Scherm v. Scherm, 12 Ark. App. 207, 671 S.W.2d 224 (1984).
Mrs. Larson contends that the chancellor erred in finding that she was an “unfit mother based solely on her homosexuality.” While the trial court did change primary custody of the children to the father, it made no finding of “unfitness” on the part of the appellant. Furthermore, we are fully persuaded that the chancellor did not change custody merely because of appellant’s homosexuality. The trial court said, “Though the parties have formed the central issue in this case as being whether or not a homosexual mother is entitled to custody of her children, the true substantive issue is whether or not it is in the best interest of the children to reside with the mother or the father.” The chancellor did express concern about the effect of Mrs. Larson’s lifestyle and the attendant publicity on the children. We find no fault with this concern, particularly in view of the testi mony that Mikey was worried about the possible effect on his younger sister. Even so, it is apparent that the chancellor’s primary focus in this regard was on appellant’s conduct, not merely her status or sexual preference. We simply do not agree that appellant’s sexual preference was the sole basis for the chancellor’s decision.
A change in custody cannot be made absent a showing of a change in circumstances from those existing at the time of the original decree. Carter v. Carter, 19 Ark. App. 242, 719 S.W.2d 704 (1986). Appellant contends that the court made no finding of a change in circumstances, but the court’s findings of fact show otherwise. Among the changes are the fact that appellant and Ms. Callendar had, while living together, engaged in sexual relations when the children were at home; that Mindy sometimes slept between the appellant and Ms. Callendar; that Mikey had gone to live with his father by agreement; and appellant’s ambivalent attitude as to her desire for custody of Mikey.
In making his decision the chancellor considered the fact that Mikey wanted to continue to live with his father. See Anderson v. Anderson, 18 Ark. App. 284, 715 S.W.2d 218 (1986). He also expressed concern about keeping the two children together. This was an appropriate factor to consider. See Riddle v. Riddle, 28 Ark. App. 344, 775 S.W.2d 573 (1989).
Appellant also contends that the trial court’s finding that she and Sherry Callendar had engaged in “deviant sexual activity” is clearly against a preponderance of the evidence. While it is true that there is no evidence in the record that describes in detail the intimacies, Sherry Callendar testified that she and the appellant had “sexual relations.” We find no error here.
Appellant’s final point seeks to adopt and incorporate the arguments in an amicus curiae brief filed by the National Center for Lesbian Rights. One point raised requires discussion: the contention that the chancellor erred in restricting the appellant’s visitation. The appellee states that after the appeal was lodged the trial court entered an order providing for unrestricted visitation, which the appellee did not oppose. Because this statement has not been contested by reply brief or otherwise, we agree that the issue is now moot.
For the reasons stated the decision of the trial court is affirmed.
Affirmed.
Robbins, J., agrees. Rogers, J., concurs. | [
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James R. Cooper, Judge.
The appellant in this eminent domain case secured a temporary construction easement to property owned by the appellees. The appellees contested the Commission’s evaluation of the fair rental value of the property and, after a hearing, the trial court found the fair rental value of the construction easement to be $48,000. From that decision, comes this appeal.
For reversal, the appellant contends that the trial court’s award is not supported by the evidence. We agree, and we reverse and remand.
The sole issue before the trial court was the fair value of a temporary construction easement. The Comer Deli property in its entirety consisted of approximately 1.88 acres. By way of comparison, the temporary construction easement consisted of approximately .03 acre used for the construction of curbs and gutters within the state right-of-way.
There was testimony that the fair market value in fee for the area of the easement was $6.00 per square foot, totalling approximately $10,000 for the entire area of the easement were it acquired in fee. Although this testimony was not disputed, the trial judge nevertheless found that the fair rental value of the easement for the 48-month construction period was $48,000, amounting to $1,000 per month for a construction easement over the .03 acre area of the easement. By way of comparison, the mortgage payment for the entire 1.88 acres of the Corner Deli property was $1,300 per month.
On our review of the record, we think it clear that the trial judge erred in calculating the fair rental value of the property and that the amount awarded exceeds the greatest amount that can be said to be supported by substantial evidence. It appears that the trial judge misapplied a formula for valuation testified to by Mr. Palmer, an expert witness, who testified as follows:
Q. Allright, sir. What did you do with these figures you got in determining the fair market rent? How did you calculate that?
A. The property was taken January 15, 1988, and the work was completed on September 26, 1991, which was 32 and a half months. And I based the ... based upon the sales I gave, which gave a range of values, the highest one was about $5.33 a square foot; but 10% of $6.00 per square foot I considered, 10% per year for 32 and a half months. That came up for a rental of $2,475.00. To that I added the sign, a lighted sign that was on the southern side of the property, $1,350.00, which came up with a total of $3,825.00.
Q. Allright, sir. Is that your professional opinion of the fair rental value of this property and the value of the sign that was acquired?
A. It is.
In his ruling from the bench, the trial judge stated:
“THE COURT: Well, I mentioned — I think I mentioned the U.S. Constitution and Arkansas constitution in my letter of September the 14th. Some of the rulings in the cases I would have to disagree with, but I have to follow precedent.
Let me see if I can give you a figure here. I’m trying to use Mr. Palmer’s — all right, Mr. Palmer has said that the method to compute a temporary construction easement — a true rental value per year for a construction easement which is temporary is ten percent of the raw land — of the value of the raw land per year. And he cited three examples and I find that the average front foot is $943.00. And here you have a front footage of — what did ya’ll say?
LARRY WEBB: It’s 160 — well, it’s 146 and there is an off-set which is still frontage.
THE COURT: Let’s call it 140. So, that makes $132,000. I’m using the average front foot value based on his testimony — Mr. Palmer’s testimony of $943.00 a front foot times 140 is 132,020. Ten percent is 13,200 per year times four equals what, 52,800. And what I’m basing that on is front footage — in other words, I think it was pointed out — now, I’m going to decrease that slightly because certainly there was not total blockage, but where Mr. Palmer would pay on the square foot, I think that would be a distortion and not take into consideration at all the blockage of the use. You’re almost taking the whole of the land.
So, I’m going to diminish the 52,800 by — go back to the owner’s opinion of $48,000.00.”
As the record demonstrates, the trial judge apparently misunderstood Mr. Palmer’s testimony as evidenced by his attempt to calculate fair rental value on the basis of the frontage of the entire property, rather than upon the area of the actual easement. The resulting amount is not supported by the evidence and, consequently, we reverse and remand for further proceedings consistent with this opinion. See Arkansas State Highway Commission v. Bradford, 252 Ark. 1037, 482 S.W.2d 107 (1972).
Reversed and remanded.
Jennings, C.J., and Mayfield, J., agree. | [
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