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John B. Robbins, Judge.
Child Support Enforcement Unit has appealed from an order of the Greene County Chancery Court finding that appellant failed to prove that appellee, Carl Jimmy Rogers, is the father of Allen Dwayne Deckard, who was born in 1985. Appellant attacks the sufficiency of the evidence and argues that this case should be remanded to obtain testimony from the child’s mother, Kelly Deckard. We affirm pursuant to our finding that the evidence fully supports the chancellor’s decision and that appellant waived the right to have the mother testify at trial.
Ms. Deckard is a resident of Michigan. She obtained public assistance there, and a uniform reciprocal support petition was filed in Greene County, Arkansas, in 1993. A paternity affidavit was attached to the petition, in which Ms. Deckard stated that Mr. Rogers was the father of her son; the estimated date of conception was September 17, 1984; and the child’s date of birth was June 14, 1985. She also indicated in the affidavit that she had sexual intercourse with another man during the relevant time frame. Mr. Rogers denied being the child’s father.
After genetic testing was performed, the laboratory set the probability of Mr. Rogers’ paternity of the child at 99.99%. These test results were introduced into evidence at trial, but Ms. Deckard did not appear to testify. Upon admission of the laboratory report, appellant rested its case. Mr. Rogers then introduced evidence in support of his assertion that he was not the father of the child.
Waylon Smith testified that he has known Mr. Rogers between thirty-five and forty years. He discussed his knowledge of the fact that Mr. Rogers had a vasectomy in the late 1960s. Mr. Smith stated that during that period he remembered Mr. Rogers walking in a peculiar manner for about three days, and that Mr. Rogers explained that this was a result of having had a vasectomy.
Sonia Bensch testified that she has lived with Mr. Rogers about twenty-three years. She stated that she lived with him for about eighteen years before she entered menopause; that she and Mr. Rogers were sexually active and never used contraception; and that she did not get pregnant. When asked why she and Mr. Rogers never used contraception, Ms. Bensch replied, “[h]e told me he had had a vasectomy.”
Mr. Rogers admitted that Ms. Deckard was in Greene County in September 1984 but denied that he had ever had sexual relations with her. He stated that he had a vasectomy in 1969. He also stated that Ms. Deckard had indicated to him several times that she believed the child’s father to be Allen Robinson.
Mr. Rogers introduced into evidence a copy of a previous paternity affidavit signed by Ms. Deckard on April 5, 1991. In this affidavit, she named Everett Allen Robinson as the father and stated that she did not have sexual intercourse with any other men during the thirty days before or thirty days after the child was conceived. Mr. Rogers also introduced a letter from a physician, which stated that a test was performed to determine his total sperm count in 1993. This lab report concluded that there were no spermatozoa in the sample.
In a paternity proceeding brought against a living putative father, the mother’s burden of proof is a mere preponderance of the evidence, as the proceeding is civil in nature. Barnes v. Barnes, 311 Ark. 287, 295, 843 S.W.2d 835 (1992); Erwin L.D. v. Myla Jean L., 41 Ark. App. 16, 18, 847 S.W.2d 45 (1993). On appeal, this court considers the evidence in the light most favorable to the appellee, and although it tries chancery cases de novo on the record, it will not reverse a finding of fact made by the chancellor unless it is clearly erroneous. Erwin L.D. v. Myla Jean L., supra. The conflicts and inconsistencies in the witnesses’ testimony are questions of credibility, which is a matter this court leaves to the trial court. Id.
Appellant’s first and second arguments for reversal are interrelated and will be addressed together. Appellant implies that the trial court must have failed to properly apply the statutory presumption of paternity for it to have found that Mr. Rogers sufficiently rebutted the presumption and to have further found that appellant failed to sustain its burden of proving paternity. Arkansas Code Annotated § 9-10-108(a)(4) (Repl. 1993) provides that the mother may shift the burden of proof to the putative father under the following circumstances:
If the results of the paternity tests establish a ninety-five percent (95%) or more probability of inclusion that the defendant is the biological father of the child and, after corroborating testimony of the mother in regard to access during the probable period of conception, such shall constitute a prima facie case of establishment of paternity and the burden of proof shall shift to the defendant to rebut such proof.
Appellant contends that the two prerequisites of this statute were met and it was entitled to the benefit of a presumption of paternity. Appellant argues that the blood test results which were entered into evidence showed a paternity probability in excess of 95%, and the mother’s affidavit attached to appellant’s petition constitutes the required corroboration of access. Appellant is correct in contending that Ark. Code Ann. § 9-17-316(a) (1993) provides that the physical presence of the petitioner is not required for the rendition of a judgment of parentage, and that § 9-17-316(b) permits a verified petition and affidavit to be admitted into evidence if given under oath by one residing in another state. Inasmuch as the mother, Kelly Lynn Deckard, resides in Michigan, appellant argues that her affidavit was admissible and established corroboration of access.
The affidavit of Ms. Deckard on which appellant relies as corroboration of access was not, however, offered into evidence. Although, § 9-17-316(b) renders the affidavit admissible, it does not automatically admit such affidavit. It must be proffered. The record does not reflect that the affidavit was received into evidence, nor that appellant requested its admission.
Appellant contends that Mr. Rogers’ testimony during the respondent’s case also constituted proof of access during the period of conception. Mr. Rogers testified that he saw Kelly Deckard on several occasions around September of 1984, the approximate time of conception. However, insofar as the statutory presumption is concerned, Ark. Code Ann. § 9-10-108(a)(4) requires corroborating testimony of access from the mother. Consequently, the statutory presumption never arose in this case.
The chancellor found that Mr. Rogers had effectively and sufficiently rebutted any presumption of paternity that may have been created by the blood test. Three witnesses testified that Mr. Rogers had a vasectomy prior to the conception of the child, and a 1993 lab report indicated that Mr. Rogers had a zero sperm count. In addition, Ms. Deckard swore in a 1991 affidavit that she had sexual intercourse with no person other than Everett Allen Robinson within a thirty-day period of the date the child was conceived. Given the proof presented by Mr. Rogers, we cannot find that the chancery court clearly erred in its determination that any presumption of paternity was successfully rebutted, nor can we conclude that the chancellor’s holding that appellant had failed to sustain its burden of proof in establishing paternity was clearly erroneous.
For its remaining point on appeal, appellant argues that, because the credibility of the witnesses is a critical factor in determining paternity, this case should be remanded in order to allow Ms. Deckard to testify. Appellant states, “Kelly Lynn Deckard filled out the appropriate paper work that is required by law and she is being penalized without an opportunity to explain herself and her situation.” Appellant argues that the trial record discloses a “simple failure of proof’ and, therefore, justice demands that the case be remanded to allow Ms. Deckard an opportunity to testify. In response, Mr. Rogers points out that appellant was offered, and rejected, an opportunity to obtain a continuance in order to have Ms. Deckard present to testify. Mr. Rogers argues that, since appellant declined the opportunity to have the case continued, it should not now be heard to argue that the case should be remanded for the inclusion of her testimony.
At the conclusion of appellant’s case, the parties engaged in a discussion of the legal presumption raised by the lab report and the mother’s affidavit regarding access. The following exchange occurred at a bench conference:
THE COURT: ....
... I remember seeing some obscure provision in that obscure act, that if necessary, it requires the presence of the mother.
MR. WILLIAMS: That’s correct.
THE COURT: That it requires the presence of the mother to come testify.
MR. HOLIFIELD: That’s my memory of it.
THE COURT: I haven’t read it lately.
MR. WILLIAMS: Why have the URESA action, Your Honor, if it requires them even to show up?
THE COURT: Well, because nobody contested it.
MR. HOLIFIELD: A lot of times, folks don’t show up.
THE COURT: Do you have a copy of the act with you?
MR. HOLIFIELD: I’ve got a whole, as I said, I ran off, I brought my Wills book instead of my Family Law book. Would it be possible for the Court to take that under advisement and hear the rest of the case before you rule on it?
THE COURT: Well, I was going to do that or continue it.
MR. WILLIAMS: I’d rather go ahead and hear the rest of the case.
MR. HOLIFIELD: And that may make you make a decision.
MR. WILLIAMS: Since everybody is here and we’re ready to go.
This Court has held many times that issues raised for the first time on appeal will not be considered by the appellate court. Bright v. Gass, 38 Ark. App. 71, 77, 831 S.W.2d 149 (1992). See also Kulbeth v. Purdom, 305 Ark. 19, 21, 805 S.W.2d 622 (1991). Since appellant failed to request a continuance for the purpose of securing Ms. Deckard as a witness, and expressly requested that the trial continue in her absence, it waived the right to request a remand for the introduction of Ms. Deckard’s testimony.
Affirmed.
Bullion, S.J., agrees, and Pittman, J., concurs. | [
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Per Curiam.
By opinion handed down on April 5, 1995, we reversed and remanded this case to the Arkansas Workers’ Compensation Commission. The Commission had found appellant was entitled to compensation for medical benefits and physical impairment but denied wage loss disability in any amount. We remanded for a new determination as to wage loss disability “consistent” with our opinion.
Counsel for appellant has filed a motion for attorney’s fees pursuant to Ark. Code Ann. § ll-9-715(b) (1987). We think a fee is proper. See Cagle Fabricating & Steel, Inc. v. Patterson, 43 Ark. App. 79, 861 S.W.2d 114 (1993); Crow v. Weyerhaeuser Co., 41 Ark. App. 225, 852 S.W.2d 334 (1993). Therefore, we grant appellant’s motion and award a fee of $500.00. | [
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Judith Rogers, Judge.
The appellant in this paternity case, the Arkansas Department of Human Services, Child Support Enforcement Unit (CSEU), appeals from an order awarding the appellee, Steve Haller, attorney’s fees. In December 1992, CSEU filed a paternity complaint in the chancery court of Arkansas County, alleging that appellee was the father of a child born out of wedlock. After a blood test, excluded appellee as the father, CSEU filed a motion to dismiss the complaint. In a response filed September 13, 1993, appellee sought attorney’s fees of $350.00. CSEU then responded that attorney’s fees are not authorized by statute in cases where the alleged father is determined not to be the father. The chancellor dismissed the complaint and awarded appellee $250.00 in attorney’s fees.
Both parties to this appeal agree that the rule in Arkansas is that attorney’s fees are not awarded unless expressly provided for by statute or rule. See Gill v. Transcriptions, Inc., 319 Ark. 485, 489, 892 S.W.2d 258 (1995); Friends of Children, Inc. v. Marcus, 46 Ark. App. 57, 62, 876 S.W.2d 603 (1994). CSEU argues that the applicable statute, Arkansas Code Annotated § 9-10-109(a)(1) (Repl. 1993), provides for attorney’s fees only when paternity is established. Section 9-10-109(a)(l) provides:
Subsequent to the finding by the court that the defendant is the father of the child, the court shall follow the same guidelines, procedures, and requirements as set forth in the laws of this state applicable to child support orders and judgments entered by the chancery court as if it were a case involving a child born of a marriage in awarding cus tody, visitation-, setting amounts of support costs and attorney’s fees, and directing payments through the clerk of the court.
(Emphasis added.) Here, there was no finding that appellee was the father of the child, and we agree with appellant that § 9-10-109(a)(1) does not provide a statutory basis for the award.
We have examined the cases cited by appellee in his argument that even absent specific statutory authority, the trial court had discretionary authority to award attorney’s fees. We agree that the cases provide for the exercise of discretion by the trial court in the amount and timing of certain awards and the extension of a parent’s visitation rights to grandparents of children born out of wedlock. We find, however, that these cases fall far short of providing a basis for overcoming the rule that attorney’s fees are not to be awarded unless expressly provided for by statute. Appellee also argues that the award could be made pursuant to the inherent power of a court of equity to award attorney’s fees in domestic relations proceedings. Appellee’s assertion presupposes that a familial relationship exists. Here, no such relationship has been established.
When the language of a statute is plain and unambiguous, the language is given its plain and ordinary meaning. Daley v. City of Little Rock, 319 Ark. 440, 446, 892 S.W.2d 254 (1995); Leathers v. Compton, 316 Ark. 10, 13, 870 S.W.2d 710 (1994); Smith v. Smith, 41 Ark. App. 29, 32, 848 S.W.2d 428 (1993). The plain language of § 9-10-109(a)(1) thus limits its operation to proceedings in which the court finds the putative father to be the father of the child. Because there is no statutory authority for the award made in this case, the trial court’s award of attorney’s fees is reversed.
Reversed.
Jennings, C.J., and Pittman, J., agree. | [
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Melvin Mayfield, Judge.
This case involves two zoning variances which were granted by the Board of Adjustment for the City of Little Rock.
In September 1992, the Brady Masonic Lodge requested two variances to permit construction of a 4,000 square foot building. The first variance requested was a reduction in the set-back requirements and the second was a reduction in the number of required parking places. On September 28, 1992, the Board granted the variances with certain conditions including that the appellants’ parking lot would not be used without written consent.
On October 28, 1992, the appellants, who are adjoining landowners, filed a complaint in Pulaski County Circuit Court asking that the Board’s decision be reversed and the variances in favor of the Lodge be denied. On January 10, 1994, an amended complaint was filed in which it was alleged that the Lodge failed to demonstrate undue hardship if the variances were not granted.
At trial, appellants’ counsel stated the issue was whether or not the appellee “justly granted the variance” and whether or not the denial of the variances would “impose an undue hardship” on the Lodge. The trial judge stated that he had looked over the ordinance and it contained two conditions: (1) whether strict enforcement would cause a hardship due to circumstances unique to the property; and (2) whether the variance was in keeping with the spirit and intent of the provisions; that is, does it change the use or is it simply a variance of the lawful use that was anticipated. He then stated, “Of course, the plaintiff always has the burden of proof to show that the variance goes beyond the authority vested in the Board.”
After hearing the evidence the trial judge took the case under advisement. On January 18, 1994, an order was entered in favor of the City on the finding that appellants had failed to meet their burden of proving that the Board acted beyond its vested authority.
Appellants argue the trial court erred in finding they had the burden of proving the Board erred in granting the variances. The appellee cites City of Harrison v. Wilson, 248 Ark. 736, 453 S.W.2d 730 (1970), and argues the party challenging a variance has the burden of proof.
Section 36-69 of the Little Rock City Code Revised 1988, as adopted by Ordinance Number 15,559 of the Board of Directors provides:
B. The Board may hear requests for variances from the literal provisions of this chapter in instances where strict enforcement of this chapter would cause undue hardship due to circumstances unique to the individual property under consideration, and grant such variances only when it is demonstrated that such action would be [in] keeping with the spirit and intent of the provisions of this chapter.
Appeals from the Board of Adjustment to the circuit court are to be tried de novo on the same issue that was pending before the Board. City of Little Rock v. Leawood Property Owners Ass’n, 242 Ark. 451, 413 S.W.2d 877 (1967).
Therefore, the issue before the circuit court was whether the strict enforcement of the zoning regulations would cause undue hardship and whether granting the variances was in keeping with the spirit and intent of the zoning regulations.
City of Harrison, supra, does not hold to the contrary. In that case the board of adjustment permitted a beautician to employ an assistant, who did not live on the premises, in her home. The City brought suit to enjoin the arrangement as violating the ordinance which allowed the board to authorize a variance but not a nonconforming use, defined as a use not conforming to the regulations of the district in which the structure being used is located. The chancellor found that the exception granted by the board of adjustment amounted to a variance and was therefore lawfully authorized by the board. On appeal to the Arkansas Supreme Court the issue was whether the board had authorized a variance, which is usually given by special permission to alleviate hardship and was within its authority, or had authorized a nonconforming use. Our supreme court stated that it was not convinced that the variance at issue thwarted the purpose of the zoning scheme or changed the essential residential character of the neighborhood and held the board had issued a. permissible variance. The court that held the City, as plaintiff, had the burden of showing a nonconforming use and had failed to do so.
In the instant case, there is no issue as to whether the Board authorized a nonconforming use. Rather the issue to be decided is whether a variance should be allowed because of undue hardship and whether the granting of a variance would be in keeping with the spirit and intent of the zoning provisions.
Therefore, we reverse and remand for further proceedings consistent with this opinion.
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John B. Robbins, Judge.
In this divorce case, Lawrence White has appealed from an order of the Cleveland County Chancery Court denying his motion for new trial and from the court’s division of property held by the parties as tenants by the entirety. We affirm the chancellor’s refusal to grant a new trial and modify the chancellor’s disposition of the tenancy by the entirety property.
The case was set for trial on August 16, 1993, and the parties and their attorneys were present. Robert Cortinez, appellant’s attorney, told the chancellor that he had been unable to obtain certain bank records. At Mr. Cortinez’s urging, the chancellor agreed to continue the case. At the conclusion of that hearing, in the presence of the parties and their attorneys, the chancellor said: “I will grant your motion for a continuance. I will also order your client to bring those payments current and to pay them until this case is heard which will be the 18th of October at 1:00 p.m.”
On October 4, 1993, appellant fired Mr. Cortinez. On October 8, 1993, Mr. Cortinez filed a motion to withdraw as appellant’s attorney of record. In this motion, he stated that his firm had released all records and pertinent documents to appellant. This motion was granted on October 12, 1993.
On October 18, 1993, appellant did not show up for trial. The chancellor proceeded with the hearing, stating:
I think . . . we’ve given Mr. White ample opportunity and he is not here today. I think he clearly was aware that this case was set for trial today. He should have made other arrangements for another attorney or at least showed up today and if he needed a continuance asked for it himself. So if you want to proceed I will proceed.
Appellee, Barbara White, then testified about her residence and grounds for divorce. She testified that the parties owned four lots in both of their names and requested the chancellor to award two lots to each party. She testified that there was one child of the marriage and discussed the parties’ assets and debts. Appellee also presented corroboration of her residence in Cleveland County for the required period of time.
At the conclusion of the hearing, the chancellor noted the statutory restrictions placed upon his disposition of the tenancy by the entirety property. He stated that he did not believe it would violate the statute (Ark. Code Ann. § 9-12-317 (Repl. 1993)) to award two of the lots to each party as long as they were equal in value. He then directed appellee’s attorney to prepare the decree.
On October 28, 1993, appellant moved for a new trial on the ground that he had been under the mistaken belief that the trial was to be held on October 23, 1993. He did not object to the granting of divorce to appellee but requested that the provision in the decree which pertained to child support and the division of property be set aside. Attached to his motion was an affidavit, wherein he stated that it was his understanding that the court date was October 22, 1993. He also claimed that he was unable to obtain another attorney and, after he explained his problem to Mr. Cortinez’s firm, that firm agreed to represent him again.
In response, appellee argued that, on August 16, 1993, appellant was notified of the date of the trial and had ample opportunity to appear.
Appellant was given a hearing on his motion. A member of Mr. Cortinez’s firm, Christopher Anderson, attended on appellant’s behalf and argued that appellant was entitled to a new trial under Ark. R. Civ. R 59. At this hearing, appellant testified that he did not know the trial was set for the 18th of October. He stated: “I understood the judge to say October the 21st.”
The chancellor sent a letter to the attorneys, advising them that he was denying appellant’s motion for a new trial. An order to this effect was entered on April 28, 1994, and in this order, the chancellor found appellant had presented no good reason to justify his failure to appear for trial on October 18, 1993. In the divorce decree entered April 12, 1994, the chancellor provided:
[T]he Parties jointly own four (4) Lots of real property, in Cleveland County, Lots 5, 6, 7, and 8, in Farr Subdivision to the City of Rison, Arkansas, and such realty shall be evenly divided, with [appellee] taking sole and clear title to Lots 5 and 6, and [appellant] taking sole and clear title to Lots 7 and 8 . . . .
On appeal, appellant first argues that the chancellor erred in denying his motion for new trial. Arkansas Rule of Civil Procedure 59(a) provides:
(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the claim on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party: (1) any irregularity in the proceedings or any order of court or abuse of discretion by which the party was prevented from having a fair trial; (2) misconduct of the jury or prevailing party; (3) accident or surprise which ordinary prudence could not have prevented; (4) excessive damages appearing to have been given under the influence of passion or prejudice; (5) error in the assessment of the amount of recovery, whether too large or too small; (6) the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law; (7) newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial; (8) error of law occurring at the trial and objected to by the party making the application. On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.
It is well settled that the granting of a new trial addresses itself to the sound discretion of the trial court, and this Court will not reverse unless it appears that the trial court abused its discretion. O’Flarity v. O’Flarity, 42 Ark. App. 5, 15-16, 852 S.W.2d 150 (1993). Accord Franklin v. Estate of Griffith, 11 Ark. App. 124, 128, 666 S.W.2d 723 (1984).
In his reply brief, appellant argues that he is being punished for his former attorney’s neglect. The principle is well settled that it is the duty of a litigant to keep himself informed of the progress of his case. Neal v. Wilson, 321 Ark. 70, 74, 900 S.W.2d 111 (1995). An attorney’s acts of omission, as well as commission, are to be regarded as the acts of the client he represents, and the negligent acts of the attorney are equivalent to the negligence of the client himself. Self v. Self, 319 Ark. 632, 637, 893 S.W.2d 775 (1995). In the absence of fraud, the client is bound, according to the ordinary rules of agency, by the acts, omissions, or neglect, of the attorney within the scope of his authority. Id. Accord Diebold v. Myers Gen. Agency, Inc., 292 Ark. 456, 461, 731 S.W.2d 183 (1987). It is apparent that appellant’s nonappearance at trial was the result of his own failure to keep himself informed of the progress of the action. We therefore hold that appellant did not demonstrate entitlement to a new trial under any of the reasons listed in Rule 59.
In his second point on appeal, appellant argues that the chancery court erred in awarding two of the lots held as tenants by the entirety to each of the parties. We agree. Arkansas Code Annotated § 9-12-317(a) (Repl. 1993) provides:
When any chancery court in this state renders a final decree of divorce, any estate by the entirety or survivorship in real or personal property held by the parties to the divorce shall be automatically dissolved unless the court order specifically provides otherwise. In the division and partition of the property, the parties shall be treated as tenants in common.
Under the decisions of this Court and the Arkansas Supreme Court, if the chancellor wished to deal affirmatively with this tenancy by the entirety property, he had two options: he could have placed one of the parties in possession of the property, or he could have ordered the property sold and the proceeds divided equally. Bradford v. Bradford, 34 Ark. App. 247, 249, 808 S.W.2d 794 (1991); Leonard v. Leonard, 22 Ark. App. 279, 280, 739 S.W.2d 697 (1987). Warren v. Warren, 11 Ark. App. 58, 59, 665 S.W.2d 909 (1984). See also Askins v. Askins, 5 Ark. App. 64, 66, 632 S.W.2d 249 (1982). The chancellor, therefore, erred in his disposition of the parties’ property held as tenants by the entirety.
On de novo review of a fully developed chancery record, where we can plainly see where the equities lie, we may enter the order which the chancellor should have entered. Bradford v. Bradford, 34 Ark. App. at 249. We therefore hold that the parties now hold all four lots as tenants in common.
Affirmed as modified.
Jennings, C.J., and Pittman, J., agree. | [
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James R. Cooper, Judge.
This appeal involves the chancellor’s valuation and division of a corporation owned by the par ties upon their divorce. In dividing the parties’ marital property, the chancellor valued McClard Commercial Realty, Inc., at $125,000 and awarded the appellee half of this amount. On appeal, the appellant argues that the chancellor’s valuation of McClard Commercial Realty was clearly erroneous. We disagree and affirm.
Chancery cases are reviewed de novo on appeal and the appellate court will not disturb the chancellor’s findings unless they are clearly erroneous, giving due deference to the chancellor’s superior position to determine the credibility of the witnesses and the weight to be given their testimony. Bolan v. Bolan, 32 Ark. App. 65, 796 S.W.2d 358 (1990). The question on appeal essentially involves the weight and credibility of the witnesses’ testimony and it is the province of the trier of fact to determine the credibility of witnesses and resolve conflicting testimony. Id.; Jones v. Jones, 29 Ark. App. 133, 111 S.W.2d 873 (1989).
During the trial, each party presented witnesses to testify regarding the value of the corporation. One of the appellee’s witnesses, Mr. Michael David Robinson, obtained real estate listings and income tax information from the appellant and from these calculated the combined potential commissions of all McClard Commercial Realty’s listings at $531,910. To this total, the appellee’s expert assigned a value of 25% based upon information he received from other brokers that 20% to 25% of potential commissions would be a reasonable value of real estate listings. Mr. Robinson added $25,000 to this figure as an estimated goodwill value of the McClard trade name, giving a total value of $157,978 to the corporation. He also valued the business under the gross income method by averaging the yearly commission income claimed on McClard Realty’s tax returns for the four preceding years to arrive at an average commission income of $123,577. He testified that a market multiple would range between one and one and a half times the gross revenues. He applied this to the average commission income to arrive at an average figure of $154,471. He also used a third method to determine the value of the corporation by calculating the fair market value of McClard Realty. He added the equity, the assets, the goodwill value and the value of the contract listings to arrive at a figure of $167,585.
Mr. Terry Moore testified that he was in the real estate business and that in his opinion, listing contracts have value as assets. He testified that in determining the value of a company, he would look at the whole book of business and analyze each individual listing.
One of the appellant’s witnesses, Mr. Robert Marsh, testified that he did not place a value on the listing contracts because they represented possible future earnings. He testified that there were certain unknowns that would have to be determined in order to place a value on the listings. He testified that it would have to be determined which properties would actually sell, what portion of the listing price would be paid as commissions and expenses, and the difference between the asking price and the price actually paid for the property. He further stated that the business was one that did not have repeat customers year in and year out. In determining the value of the corporation, he looked at what a third party would be willing to pay for it. He calculated the difference between the tangible assets and the liabilities to arrive at a figure of $10,343.
Ms. Sue Cato, a commercial real estate broker, also testified that commercial real estate listings do not have value in and of themselves. However, Paul Dixon, a real estate broker, testified that in his opinion, the listings did have value but that he would want to evaluate each listing.
The chancellor rejected the valuation set forth by the appellant’s expert, Mr. Marsh, finding that it was not “remotely in the ballpark of what the business is worth” and that he had not calculated it on any accepted or approved method for evaluating marital assets or businesses that are to be valued for the division of marital property. The chancellor arrived at her valuation of McClard Realty by using some of the methods used by Mr. Robinson, taking the fair market value, balance sheet and the gross income method to arrive at a value. The chancellor discarded the appellee’s goodwill value as being arbitrary and decreased the value of the listings from 25% to 20%. To this figure, the chancellor added the commissions receivable, the equity and the assets to arrive at a figure of $123,364. Alternatively, the chancellor took the market range multiple of 1.0 rather than 1.5 or 1.25 on the gross income method to arrive at the figure of $123,577. The chancellor concluded that based upon those two figures, the value of McClard Commercial Realty was $125,000.
Here, the testimony regarding the value of the corporation was sharply controverted. There was a large disparity between the value arrived at by Mr. Robinson and the value arrived at by Mr. Marsh. Although the chancellor considered the appellee’s valuation too high, she obviously placed greater weight upon the testimony of the appellee’s witness, Mr. Robinson, in determining the value of McClard Realty and used Mr. Robinson’s valuation methods in making her findings. Upon our de novo review, we cannot say that the chancellor’s findings are clearly erroneous.
Affirmed.
Mayfield, J., agrees.
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John B. Robbins, Judge.
U.S. Rooter All Type Plumbing Company, Inc., appeals from a circuit court order finding that the court lacked jurisdiction to hear a complaint filed by the appellee, Brenda Holliman, against appellant. We reverse and remand.
In a complaint filed against appellant in 1990, appellee alleged that appellant violated the Minimum Wage Act (Act) in its employment of appellee. A hearing officer of the Arkansas Department of Labor on May 10, 1990, found that, because of appellant’s violations of the Act, appellant owed appellee $7,221.93. That decision was not appealed.
On August 16, 1990, appellee filed a complaint against appellant in circuit court, alleging the same violations of the Act and seeking judgment for $7,221.93. Appellant answered, denying appellee’s claim and attaching an employment agreement. Appellee later filed an amended complaint in which she sought $11,570.92 in wages. Appellant denied that it was obligated in any amount to appellee. On August 30, 1993, a hearing was held in circuit court on the merits of appellee’s complaint. The trial judge, however, stated in his order that the Department of Labor had issued an order finding that appellant owed appellee $7,221.93; that the Department of Labor was covered by the Arkansas Administrative Procedures Act and an appeal from that order should have been lodged within thirty days; that appellant failed to appeal that order within thirty days and therefore the circuit court had no authority to modify the order; and that appellee was entitled to a judgment of $7,221.93.
Arkansas Code Annotated § 1 l-4-303(a)( 1987) provides: “Upon application of either employer or employee, the Director of the Department of Labor or any person authorized by the director shall have authority to inquire into, hear, and decide disputes arising from wages earned and shall allow or reject any deduction from wages.” The amount in controversy is limited to $1,000.00 by Arkansas Code Annotated § 11-4-301 (1987). On appeal, appellant argues that appellee had an alternative to appealing the hearing officer’s decision pursuant to Arkansas Code Annotated § ll-4-304(a)(1987), which provides that “[i]f either employer or employee shall fail or refuse to accept the findings of the director, then either shall have the right to proceed at law as provided.” Appellant contends that appellee’s action was brought in circuit court pursuant to Arkansas Code Annotated § 11-4-218 (1987), which provides in part:
(a) Any employer who pays any employee less than minimum wages to which the employee is entitled under or by virtue of this subchapter shall be liable to the employee affected for the full amount of the wages, less any amount actually paid to the employee by the employer, and for costs and such reasonable attorney’s fees as may be allowed by the court.
(b) Any agreement between the employee and employer to work for less than minimum wages shall be no defense to the action.
(c) The venue of the action shall lie in the circuit court of any county in which the services which are the subject of the employment were performed.
Appellee argues that because the Arkansas Department of Labor is covered under the Administrative Procedures Act' (APA) by Arkansas Code Annotated § 25-15-202(a) (Repl. 1992), appellant was required by Arkansas Code Annotated § 25-15-212(b)(1) (Repl. 1992) to file a notice of appeal from the hearing officer’s decision within thirty days. Appellee contends that because no notice of appeal was filed, the trial court was correct in finding that it lacked the authority to modify the hearing officer’s decision.
In Thornbrough v. Williams, 225 Ark. 709, 284 S.W.2d 681 (1955), the appellant contested the constitutionality of Arkansas Statutes § 81-312 (now codified as § 11-4-303). In finding the statute constitutional, the court stated:
[Ojnce the Commissioner has made a finding, the losing party has a right to refuse to accept the Commissioner’s finding. After such refusal neither party is bound and each party has a right to pursue his remedy in a court of law or, as the statute says “they shall have the right to proceed at law as now or hereafter provided.” It appears to us that actually the statute simply provides a forum in which the employer and employee may settle their differences if they so desire. Under this interpretation of the act it has been urged that the act is meaningless and useless, but we do not think so. Through the many years that this statute has been in existence it is not unreasonable to suppose that many small claims have been adjusted to the satisfaction of all concerned without having had to resort to the trouble and expense of court procedure which would otherwise have been necessary.
225 Ark. at 713. The court also found that the statute “contemplates no appeal” but provides instead that in case either party does not agree with the finding, “he has the right to institute an original action in a court of law.” 225 Ark. at 714.
In Travelers Indemnity Co. v. Ark. Monroe, III, Insurance Commissioner of The State of Arkansas, 257 Ark. 1029, 522 S.W.2d 431 (1975), the appellant argued that a section of the Insurance Code was in irreconcilable conflict with the APA. The court stated:
The plain words of the Administrative Procedure Act in [Ark. Code Ann. § 25-15-212], covering judicial review of an adjudication by an agency subject to the act, are, “Nothing in this Section shall be construed to limit other means of review provided by law.” If words have not lost their meaning, this sentence means exactly what it says and appellant was entirely within its rights when it sought judicial review under the appropriate Insurance Code Section.
257 Ark. at 1030-31. The court found that the APA provides an alternate appellate procedure and jurisdiction for the judicial review of an adjudication by an agency subject to the APA. 257 Ark. at 1031. See also Estes v. Walters, 269 Ark. 891, 601 S.W.2d 252 (1980); Arkansas Sav. & Loan Ass’n Bd. v. Corning Sav. & Loan Ass’n, 252 Ark. 264, 478 S.W.2d 431 (1972).
Clearly, either party had the right to institute an original action in a court of law, and the trial court erred in finding that it lacked jurisdiction to hear this matter. We therefore reverse and remand for proceedings consistent with this opinion.
Reversed and remanded.
Cooper and Mayfield, JJ., agree. | [
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Melvin Mayfield, Judge.
The appellant Robert Lee Tucker, Jr., was found guilty by a jury of burglary and sentenced to a fine of $2,000.00.
This is the second time this case has been before us. In the previous appeal, appellant’s counsel filed a no-merit brief and a motion asking to be relieved as counsel. In Tucker v. State, 47 Ark. App. 96, 885 S.W.2d 904 (1994), we denied counsel’s motion to withdraw and remanded for rebriefing in adversary form. Counsel has now filed a brief in which he argues that the evidenceds insufficient to support appellant’s conviction.
At trial, Edward Watson testified that on August 2, 1992, he checked the residence of Gordon Kidd who was on vacation; discovered the door was unlocked; and because of some marks on the back of the house by the kitchen window, he went to the police. Officer Rickman returned to the house with Watson, checked around the side of the house and took prints off the window. They went inside; saw the window at the sink had been pried open; and saw a shoe print on the kitchen floor. They looked through the house, came back out, lifted some more prints around the window, and then left.
Officer Rickman testified that, when he arrived at the residence on August 2, he noticed a screen had been taken off a kitchen window; that he lifted several prints off the kitchen window; that he and Watson went around the residence; and that they noticed several footprints on the linoleum floor in the kitchen right in line with the counter as if someone had come through the window and walked across the kitchen floor. Officer Rickman said he took a large piece of tape, placed it over a shoe print, and lifted it. Officer Rickman testified that later that day, after he had seen appellant at Mays Grocery, the appellant came to the police department. Officer Rickman testified that while they talked the shoe print was on a desk about three or four feet from the appellant.
On August 5 Officer Rickman went to 909 South Kentucky Street to serve an arrest warrant on appellant. Appellant’s aunt took the officer into a bedroom where appellant was asleep; awoke him; the officer told him that he had a warrant for his arrest; and appellant got up and began getting ready. Officer Rickman testified that he saw a pair of tennis shoes “sitting by the bed” but appellant did not put them on. Instead, appellant got a pair of tennis shoes out of a garbage bag of clothing that was near the bed. Later Tommy Sturgeon, Police Chief of Crossett, went to the residence to pick up the tennis shoes which were lying on the floor.
Donald Smith, qualified as an expert in his field of toolmark examiner, testified that he received a left shoe and a partial shoe print; that the shoe and print were relatively similar in size; that his examination results were inconclusive; and that he could not say with certainty “that shoe made that shoe print.” He testified further that because the shoe is a mass-produced shoe its sole is similar to every other sole on that particular type of shoe.
Ralph Turbyfill, an expert witness, testified that a palm print lifted from the window at the Kidd residence matched that of the appellant.
Gordon Kidd testified that when they returned home from vacation on August 5 they saw footprints in the kitchen, that several items were missing; and that none of the items had been recovered. He testified further that the appellant is his brother-in-law and lived in the house in 1991. Marcia Kidd testified appellant was in their home around July 14, 1992.
Appellant moved for a directed verdict at the close of the State’s case, and at the conclusion of all the evidence, based on the alleged insufficiency of the evidence. The motions were denied, and on appeal he argues to us that the evidence is insufficient because his fingerprints were not found within the residence, and it was not possible to say that the footprint found inside the home was made by his shoes.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. McIntosh v. State, 296 Ark. 167, 753 S.W.2d 273 (1988). In resolving the question of the sufficiency of the evidence in a criminal case, we view the evidence in the light most favorable to the appellee and affirm if there is substantial evidence to support the decision of the trier of fact. Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty and precision, compel a conclusion one way or the other, without resorting to speculation or conjecture. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989); Ryan, supra. The fact that evidence is circumstantial does not render it insubstantial. Small v. State, 5 Ark. App. 87, 632 S.W.2d 448 (1982).
Fingerprints, under some circumstances, may be sufficient to sustain a conviction. See Brown v. State, 310 Ark. 427, 837 S.W.2d 457 (1992) (fingerprints found both on exterior window glass and inside the structure); Howard v. State, 286 Ark. 479, 695 S.W.2d 375 (1985) (fingerprint removed from exact place where robber was seen placing his hand as he vaulted into booth); Ebsen v. State, 249 Ark. 477, 459 S.W.2d 548 (1970) (fingerprints on both sides of a plate glass window that had been broken in and propped up inside the store). However, fingerprints alone have been held to be insufficient. See Standridge v. State, 310 Ark. 408, 837 S.W.2d 447 (1992) (thumbprint found on disposable cup beside a tent that was several feet from marijuana plants is not enough where there was no evidence to suggest when or where the appellant had touched the cup, whether he had purchased it, or how it came to be near the marijuana); Holloway v. State, 11 Ark. App. 69, 666 S.W.2d 410 (1984) (fingerprints on piece of glass located outside the house where a burglary occurred are not enough).
In the instant case, a screen had been removed from the kitchen window; appellant’s fingerprints were lifted from the kitchen window; there were footprints on the linoleum floor in the kitchen in line with the counter as if someone had come through the window and walked across the kitchen floor; and a footprint lifted from the kitchen floor was relatively similar in size to appellant’s shoes. Moreover, there is evidence that appellant knew a footprint was obtained by the police and when he was arrested on another charge he retrieved a pair of shoes from a garbage bag filled with clothing rather than putting on the pair of tennis shoes which were “sitting by the bed.”
We think all of these circumstances constitute substantial evidence from which the jury could find appellant committed burglary.
Affirmed.
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James R. Cooper, Judge.
The appellant, Arkansas Blue Cross and Blue Shield, appeals from an order of summary judgment granted in favor of the appellee. On appeal, the appellant argues that the trial court erred in granting the appellee’s motion for summary judgment because there is no public policy preventing modification of an insurance contract and in denying its summary judgment motion because the insurance certificate clearly allowed for amendment of benefits on the annual renewal date. We reverse and remand.
Summary judgment should be granted only when a review of the pleadings, depositions, and other filings reveals that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Johnson v. Harrywell, Inc., 47 Ark. App. 61, 885 S.W.2d 25 (1994).
The facts in the case at bar are not disputed. The appellee and her son, Chris Hicky, are subscribers of Arkansas Farm Bureau Federation Group and as such are insured under a “Comprehensive Major Medical Group Benefits Certificate” issued by the appellant, Arkansas Blue Cross and Blue Shield. In 1988, the appellee’s son was diagnosed with a growth hormone deficiency. In 1989, he began receiving as treatment a series of injections which was expected to continue for two to three years. At the time the treatments began, the appellee’s insurance certificate provided that after the appellee satisfied a $600.00 annual deduction, the appellant would pay 80% of the first $5,000.00 of medical expenses and 100% thereafter.
The insurance contract between the appellant and Farm Bureau has an annual renewal date of October 1. In order to avoid a substantial rate increase on October 1, 1989, Farm Bureau requested certain benefits under the insurance contract be reduced. One of the modifications provided that the amount paid for pharmaceutical-related expenses would be reduced to 50%. The effective date of the changes was October 1, 1989, and on August 30, 1989, Farm Bureau sent a letter to each of its subscribers detailing the changes in their medical coverage.
Pursuant to these changes, the appellant began paying 50% of Chris’ pharmaceutical expenses after October 1, 1989. The appellee subsequently filed suit against the appellant seeking judgment for the remaining 50% of Chris’ pharmaceutical expenses. The appellant denied that the appellee was entitled to any relief; and thereafter, both parties moved for summary judg ment. In granting summary judgment on behalf of the appellee, the trial court made the following findings:
There was consideration for the insurer to change the coverage of the policy.
The insurer cannot change the coverage of the policy to affect a claim which is already in place. The claim herein was already in place. The doctor had diagnosed a growth hormone deficiency and determined that the treatment should be a series of regular injections over a period of two to three years. Blue Cross-Blue Shield was contacted prior to commencing the injections and assured that the expense of the injections would be covered under the terms of the policy. The injections were started and Blue Cross-Blue Shield began paying in accordance with the policy. On October 1, 1989 some ten months later, Blue Cross-Blue Shield changed their policy and reduced the payments. Plaintiff relied upon this coverage and obviously could not on October 1, 1989 obtain other insurance coverage for a previously diagnosed illness.
Since the Defendant had accepted the claim, had commenced payment for the condition and had allowed Plaintiff to rely on Defendant’s acceptance of the claim and coverage, the insurance company should be held responsible for the entire period of the treatment. To allow Defendant to place the Plaintiff in the position of being partially not covered by insurance and most likely not able to obtain any coverage violates public policy.
The appellant first argues that the trial court erred in awarding the appellee summary judgment based on a violation of public policy because there was no public policy in effect preventing amendment to the insurance policy. In support of its argument, the appellant relies on the statement of coverage language from the insurance certificate issued to the appellee, which provides in part:
This Benefit Certificate contains the complete agreement of your insurance benefits between Arkansas Blue Cross and Blue Shield, A Mutual Insurance Company (the Plan), and the Arkansas Farm Bureau Federation (Farm Bureau).
The Group Member (Farm Bureau) is recognized as your agent for all dealings with respect to:
1. Changes in coverage status (from individual to family or from family to individual);
2. Submitting membership applications to the Plan; and
3. Receipt of all communications and notices from the Plan.
We will consider you to have received any notice mailed to you at the current address on our records.
The Plan reserves the right to amend the benefits, conditions and premiums in connection with this Certificate. If we do so, we will give 30 days’ written notice to Farm Bureau, and the change will go into effect on the date fixed in the notice.
The appellant asserts that the certificate clearly gives the appellant and Farm Bureau the right to amend coverage under the policy and that the appellee has cited no authority that public policy prevents competent parties to a contract from voluntarily amending their agreement.
There is no dispute that Farm Bureau requested and agreed to modification of the certificate coverage in order to minimize the rate increase for its subscribers. An insurer may contract with its insured upon whatever terms the parties may agree upon which are not contrary to statute or public policy. Shelter General Ins. Co. v. Williams, 315 Ark. 409, 867 S.W.2d 457 (1993). The general rule is that a contract is against public policy if it is injurious to the interests of the public, or contravenes some established interest of society or some public statute, or is against good morals, or tends to interfere with the public welfare. Guaranty Nat’l Ins. v. Denver Roller, Inc., 313 Ark. 128, 854 S.W.2d 312 (1993). The public policy of this state is found in its Constitution and statutes. Id. at 139.
We have not found any provision in any constitution or statute that would govern the issue here. Flowever, there are cases that have dealt with insurance provisions that violate public policy. In Arkansas Blue Cross & Blue Shield v. Long, 303 Ark. 116, 792 S.W.2d 602 (1990), the issue involved an exclusionary clause that denied coverage for in-patient services rendered prior to the time the insured terminated the in-patient admission against medical advice. Our Supreme Court held that the provision, when weighed against the consequences for the insured, did not square with public policy and noted that the appellant could accomplish its goals by excluding coverage for expenses occurring after a discharge against medical advice. The Court further stated:
Moreover, the provision, as Blue Cross would have it operate in this case, works a forfeiture on the insured, and such provisions have not been favored by the courts in any case. 2 G. Couch, Couch on Insurance 2d, (Rev’d ed.) § 15:49 (1984); Missouri State Life Insurance Co. V. Foster, 188 Ark. 1116, 69 S.W.2d 869 (1934). As we stated in Foster,
Forfeitures cannot and should not be declared when the rights of parties have become vested . . . We are irrevocably committed to the doctrine that, when liability attaches, no subsequent act of the parties will effect a forfeiture of the policy, unless the contract of insurance by the definite and explicit terms so provides.
As stated in 10 G. Couch, Couch on Insurance 2d, (Rev. ed) § 41-378 (1982):
The courts must enforce policy conditions in the nature of exceptions or limitations if they do not run counter to statute, are not inconsistent with public policy and are explicit in terms and plain of meaning.
At the same time, since the insurance business is affected with the public interest, the right of the insurer to incorporate in its contracts such provisions as it may desire, is subject to the limitation that conditions avoiding the policy should not be unreasonable. . . .
303 Ark. at 118-19, 792 S.W.2d at 603. See also Arkansas Blue Cross Blue Shield v. Brown, 33 Ark. App. 44, 800 S.W.2d 724 (1990).
The appellant asserts that the case at bar is distinguishable because no benefits had accrued at the time it changed its policy because the policy did not insure against a specific injury but “eligible medical expenses incurred” as provided in the stop loss provision of the certificate. The appellant contends that no rights had vested at the time it modified its policy and therefore, the change did not cause the appellee to forfeit vested rights. The appellant cites Arkansas Blue Cross Blue Shield v. Foerster, 38 Ark. App. 228, 832 S.W.2d 280 (1992), where this Court distinguished between accident or illness policies and medical expense policies. In Foerster, we stated that:
It is said that if the policy is an accident or illness policy, the insured risk is considered the accident or illness itself. Conversely, if a policy provides coverage for expenses or charges, it is the incurring of expenses which is considered the contingency that gives rise to the insurer’s liability. Thus, when an insurance policy insures against accidental injury, the insured’s right to receive benefits is considered “vested” upon the occurrence of the accident, and termination of the insurance policy does not affect the insurer’s liability or its duty to pay benefits for related medical expenses incurred after the termination of the policy. However, when a policy insures against the incurrence of medical expenses, the benefits cease when the policy is terminated and the insurer is not responsible for expenses which arise after termination.
38 Ark. App. at 231-32, 832 S.W.2d at 282. (Citations omitted.)
A situation similar to the case at bar arose in Harvard Community Health Plan, Inc. v. Zack, 33 Mass. App. Ct. 649, 603 N.E.2d 924 (1992), in which the appellant, Linda Zack, appealed from a judgment that allowed the appellee, HCHP, to limit the physical therapy provided to the appellant’s two special needs children. The appellant had been an HCHP subscriber since 1976, and HCHP had provided unlimited physical therapy for the children since 1983. In 1986, the policy was changed to limit physical therapy benefits to three months per illness. Notwithstand ing this limitation, the appellant’s children continued to receive unlimited physical therapy until 1989, when HCHP informed the appellant it would limit visits per the insurance agreement. In 1990, HCHP terminated further physical therapy after the three months limitation was reached. Part of appellant’s claim was handled by arbitration; however, she appealed the award of summary judgment to HCHP that held HCHP was not estopped from limiting physical therapy benefits in future contract years. On appeal, the Court in Zack held:
We agree with the judge’s determination that a new contract between HCHP and its members comes into existence each year. HCHP set out its rights in the subscriber agreement, which is the “entire contract between the Member and HCHP.” According to the language of the subscriber agreement, health care services are provided to enrolled members, subject to the terms of the subscriber agreement, “for the period the premium covers.” Each year, subscribers are given an “open enrollment” period, from April 1 through April 30, during which they may make membership changes to enroll dependents with HCHP. HCHP reserves the right to revise the benefits provided to members, after designated notice, without the consent of members. These facts support a finding that the contract between HCHP and the subscriber was not perpetual but was renewed annually.
HCHP’s letter of January 30, 1991, put Zack on notice that, after the April, 1991, “open enrollment” period for the 1991-1992 contract year, HCHP would apply the three-month limitation on physical therapy benefits to the Zack family. The plain language of the subscriber agreement had contained this limitation since 1986. At the time of the arbitration, Zack reasonably could have relied on the expectation of unlimited benefits since she was granted repeated “discretionary exceptions” to the limitation by HCHP representatives. Once timely notified of the change in benefits, however, Zack could no longer reasonably rely upon the expectation of unlimited physical therapy benefits.
In sum, Zack is not entitled to future unlimited physical therapy benefits in perpetuity due to the provision of such benefits in the past. See Garvey v. Prudential Ins. Co., 596 F.Supp. 1119, 1124 (E.D.Pa. 1984) (plain terms of the contract precluded any “vested” right to unlimited private nursing benefits, and past benefits could be modified upon proper notice).
603 N.E.2d at 926-27.
In the case at bar, the modification did not work as a forfeiture or termination of coverage but reduced coverage by a policy modification on the renewal date. We do not find that the benefits under this policy were vested rights as under an accident or illness policy. We agree with the reasoning in Harvard Community Health Plan, supra, and conclude that the language of the policy plainly provided for modification and that the appellee was not entitled to have future benefits paid at the same rate as past benefits due to the provision of those benefits in the past.
The appellant argues for its second point that the trial court erred in denying its motion for summary judgment because the insurance certificate clearly allowed for amendment of benefits on the annual renewal date. We note that it was not contended by the appellee that the appellant could not modify its policy provisions or that the contract was ambiguous. The appellee only argued that to do so in relation to the circumstances of this claim would violate public policy.
Where the language of the policy is unmistakably clear, it is unnecessary to resort to rules of construction, and the policy should not be interpreted to bind the insurer to a risk that is plainly excluded and for which it was not paid. Arkansas Blue Cross & Blue Shield, Inc. v. Foerster, 38 Ark. App. 228, 832 S.W.2d 280 (1992). Here, the facts were not disputed and the issue of whether the appellant could amend its insurance policy under the circumstances presented was one of law. We find that the insurance policy clearly allowed for amendment of benefits on the annual renewal date and that the appellant was entitled to judgment as a matter of law. Thus, we reverse and remand for the trial court to enter judgment in favor of the appellant.
Reversed and remanded.
Mayfield, J., dissents.
Pittman, J., not participating. | [
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James R. Cooper, Judge.
The appellant in this criminal case was tried on February 2, 1994, found guilty of theft, and sentenced as an habitual offender to twenty years in the Arkansas Department of Correction. From that decision, comes this appeal.
For reversal, the appellant contends that his trial counsel was ineffective. We do not reach this issue because it is not preserved for appeal.
The appellant failed to raise the issue of ineffective assistance in the trial court, and the record has consequently not been developed on that issue. Because ineffective assistance of counsel may not be raised on direct appeal unless the issue has been considered by the trial court, Sumlin v. State, 319 Ark. 312, 891 S.W.2d 375 (1995), we will not address it for the first time on appeal.
Affirmed.
Robbins and Mayfield, JJ„ dissent. | [
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Melvin Mayfield, Judge.
The trial judge, without a jury, found the appellant guilty of possession of cocaine with intent to deliver and sentenced him as an habitual offender to serve sixteen years in the Arkansas Department of Correction with eight years suspended.
Sahibzada Ahmed, a general surgeon, testified that on May 13, 1993, the appellant came to the emergency room at Sparks Hospital in Fort Smith and said he had swallowed a small plastic Ziploc bag containing cocaine. Dr. Ahmed said that appellant was very nervous and concerned that it might be harmful to him and, from what appellant told them, there was a significant amount of cocaine in the bag. Dr. Ahmed testified that he knew a high dose of cocaine could be lethal; that there was a possibility that the bag could dissolve and discharge its contents into appellant’s gastrointestinal tract; and that he recommended surgery to remove the bag from appellant’s stomach. Dr. Ahmed testified that he surgically opened appellant’s stomach under general anesthesia and retrieved a small bag, about two inches by one and one-half inches in size. The bag, which was not hermetically sealed, contained a crystal and white powder that was tinted and a “little red” due to stomach bile. Dr. Ahmed testified he gave the bag to one of the nurses working with him, and he did not open the bag or attempt to measure its contents. The doctor testified that he thought there was a usable amount of cocaine in the bag but this was not based on his expertise as a medical doctor.
Barbara Gillory, an operating room staff nurse, testified that she observed Dr. Ahmed take a small plastic bag from appellant; that it was opened; and that it contained some white powder and some liquid possibly from the stomach. She testified that she sealed it in a plastic isolation bag and later gave it to Detective Paul Smith.
Detective Smith testified he went to Sparks Hospital where Ms. Gillory gave him the plastic bag found in appellant’s stom ach. Smith testified that he looked at the substance in the bag; that it resembled a street-illicit drug; and that he thought the substance was cocaine. Detective Smith later conducted a field test on the substance and it tested positive for cocaine.
Nick Dawson, a drug chemist at the Arkansas State Crime Laboratory, testified that he performed screening tests and thin-layer chromatography on the substance which indicated the presence of cocaine. He said that he did not quantitate the substance because it was not very pure; that it had a lot of extra “peaks” from whatever was in the liquid part.
Appellant advances two arguments which challenge the sufficiency of the evidence. In resolving the question of the sufficiency of the evidence in a criminal case, we view the evidence in the light most favorable to the appellee and affirm if there is substantial evidence to support the decision of the trier of fact. Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty and precision, compel a conclusion one way or the other without resorting to speculation or conjecture. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989); Ryan, supra.
Appellant first argues the trial court erred in finding that he was in possession of cocaine because the substance was in his body. He cites Ark. Code Ann. § 3-3-203(a)(2) (1987) in support of this argument. That statute provides that intoxicating liquor, wine, or beer in the body of a minor shall not be deemed to be in his possession. But there is no such exemption contained within the controlled substances statutes. Moreover, appellant was not convicted of possession of cocaine for having consumed it but for having an entire bag of cocaine in his body. There is no evidence that he had any intention of “consuming” it. To the contrary, the evidence indicates that he requested that the cocaine be removed out of concern that it could be harmful to him.
Appellant also argues the trial court erred in finding the substance removed constituted a “usable” amount of cocaine. See Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990) (appellant was found to be in possession of a bottle which contained cocaine dust or residue, but it was too small to weigh with the state crime laboratory equipment which could weigh nothing smaller than one milligram).
Here, however, there was clearly a measurable amount of cocaine. The bag which was surgically removed from appellant’s stomach was approximately two inches by one and one-half inches and contained a visible amount of a substance which later proved to be cocaine. Moreover, Dr. Ahmed testified that from what appellant told him there was a significant amount of cocaine in the bag. Indeed, the appellant came into the emergency room fearful that the substance contained in the bag which he swallowed could be harmful to him and allowed it to be surgically removed.
We think there is substantial evidence to support appellant’s conviction for possession of cocaine.
Affirmed.
Rogers and Cooper, JJ., agree. | [
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John Mauzy Pittman, Judge.
Appellant Sara Bradley appeals the Arkansas Workers’ Compensation Commission’s decision awarding a 15 percent permanent impairment rating and 30 percent wage-loss disability. Appellant argues that the decision is not supported by substantial evidence in that she is totally and permanently disabled. We affirm.
On appeal in workers’ compensation cases, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and will affirm if those findings are supported by substantial evidence. Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding: if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Cagle Fabricating & Steel, Inc., v. Patterson, 42 Ark. App. 168, 856 S.W.2d 30 (1993).
On January 3, 1989, appellant sustained a compensable injury to her neck while lifting a 55 gallon drum. Dr. Richard Jordan, a neurosurgeon, performed a cervical diskectomy on June 2, 1989. Dr. Jordan’s January 29, 1990, report stated that when appellant returned to work, which was estimated to be in March 1990, she should not lift more than 50 pounds and limit lifting over her head, pushing, pulling, bending and stooping. Dr. Jordan assigned a 15 percent impairment rating for her neck injury. On April 6, 1990, Dr. Jordan restricted appellant to lift no more than 25 pounds. Appellant returned to work in March 1990 and continued until February 4, 1991, when she quit because of pain in her arms and neck. Appellant has not worked since that time nor has she sought work.
Appellant testified that frequent bending or lifting causes her neck to swell which results in choking. She further stated that she has difficulty reaching over her head, going up and down stairs, and grasping with her hands, and that writing causes her hand to cramp. Her main problems are her arms, hands and neck. She said that she does limited housework, but is in pain while doing it. She is able to drive a car for short distances. She stated that she cannot sit for longer than 30 minutes to an hour at a time. However, she said that she does not have any trouble walking or standing.
Appellant is 48 years old, has a GED and can read and write. She has worked as a waitress, manual laborer, assistant in a tree nursery and sewing machine operator. The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Grimes v. North American Foundry, 42 Ark. App. 137, 856 S.W.2d 309 (1993). The Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other matters affecting wage loss, such as the claimant’s age, education and work experience. Ark. Code Ann. § ll-9-522(b) (1987); Grimes, supra.
The Commission stated, “Although the medical records indicate that [appellant] could not return to her former employment or heavy labor, they do not indicate that the [appellant] is unable to perform any gainful employment.” The Commission also noted appellant’s failure to complete a work hardening program, disinterest in any rehabilitation, lack of motivation to return to work, and no attempt made to seek work. There is substantial evidence to support the Commission’s award of permanent disability benefits and finding that appellant is not totally and permanently disabled.
Affirmed.
Mayfield and Cooper, JJ., dissent. | [
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James R. Cooper, Judge.
The appellant was convicted in a jury trial of second degree criminal mischief. He was sentenced to six years in the Arkansas Department of Correction and fined $1,000.00. He was also convicted of driving while intoxicated, reckless driving, driving without a license, driving without proper insurance and refusal to submit to a chemical test with the sentences for these convictions to run concurrently with the criminal mischief sentence. On appeal, he argues that the trial court erred in denying his motion for a directed verdict on the charge of refusal to submit to a chemical test and that the trial court committed reversible error in admitting into evidence an Arkansas Traffic Violation Report. We affirm.
In order to question the sufficiency of the evidence on appeal, where there has been a jury trial, the appellant must move for a directed verdict at the close of the evidence presented by the State and at the close of all the evidence. Ark. R. Crim. R 36.21(b). A motion for a directed verdict must be specific enough to apprise the trial court of the particular basis on which the motion is made. Clay v. State, 318 Ark. 550, 886 S.W.2d 608 (1994); Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994). A general motion for a directed verdict which does not specify the grounds for the motion is insufficient to preserve a specific argument for appellate review. Walker v. State, supra.
Here, the appellant made only a general motion for a directed verdict at the close of the State’s case and renewed all previous motions at the end of the case. The appellant’s motion failed to state the specific grounds on which it was made, and furthermore failed to specify which of the charges he was challenging. Consequently, the appellant’s argument is not preserved for appellate review.
In his second argument, the appellant contends that the trial court erred in admitting into evidence State’s Exhibit No. 3, a copy of an Arkansas Traffic Violation Report. This exhibit was offered on behalf of the State to support the charge of driving without a driver’s license. The first page of the exhibit indicates that the appellant was issued an identification card instead of a valid operator’s license. The second page of the exhibit is a certification by the Manager of the Driver Control Section of the Department of Finance and Administration that the first page was a true and correct copy of a record from the Office of Driver Control. Following the certification is an acknowledgment by a notary public that the manager of the driver control section personally appeared before her and executed the certification.
The appellant contends that the exhibit was not properly authenticated because the signature attesting to the authenticity of the document was a stamp purporting to be the signature of the manager of the driver control section rather than a handwritten signature. The appellant concedes that this type of document is generally admissible under Arkansas Rule of Evidence 902 as a self-authenticating document. However, he asserts that this exhibit does not comply with Rule 902 because the signature was not handwritten.
Rule 902(4) provides that the following documents are self-authenticating:
Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in the public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by a certificate complying with paragraph (1), (2), or (3), or complying with any law of the United States or of this State.
There is nothing in the rule which mandates that the certification contain a handwritten signature. The appellant has not cited to us any authority in support of this argument. Moreover, printing, typing, or stamping a name in the place where a signature should appear is sufficient if it is intended as a signature. Ragge v. Bryan, 249 Ark. 164, 458 S.W.2d 403 (1970). Thus, we find that the trial court did not err in admitting the exhibit as a self-authenticating document.
Affirmed.
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John Mauzy Pittman, Judge.
On November 30, 1989, Michael H. Sellers pled guilty to theft of property and received a suspended sentence. On November 23, 1993, the State filed a petition to revoke appellant’s suspended sentence. Appellant’s suspended sentence was revoked, and he was sentenced to eight days imprisonment. The trial court found appellant in contempt and ordered an additional thirty days imprisonment for violation of the order granting a suspended sentence. Appellant’s sole argument on appeal concerns the finding of criminal contempt. Appellant contends that he had not received prior notice of the charge of criminal contempt.
During the revocation hearing the trial court recognized that appellant had only eight days remaining on the suspended sentence. The court stated that appellant could be held in criminal contempt. Appellant objected stating that he had not received notice of a contempt charge and was unprepared to defend. The court revoked the suspended sentence and found appellant in criminal contempt.
Appellant argues on appeal that he was not informed of a criminal contempt charge. We agree. An information may be amended during trial if the nature or degree of the crime is not changed and if the defendant is not prejudiced through surprise. Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992); Lee v. State, 297 Ark. 421, 762 S.W.2d 790 (1989). Here, appellant appeared for a hearing on a petition to revoke a suspended sentence and was then first made aware of a criminal contempt charge. Since this in essence changed the nature and degree of the offense charged, we reverse the conviction of criminal contempt. Having done so, we need not address appellant’s remaining argument that there was insufficient evidence that he committed criminal contempt.
Reversed.
Jennings, C.J., and Rogers, J., agree.
We note that pursuant to Ark. Code Ann. § 16-10-108(a)(3) (Repl. 1994) a court has the power to punish for criminal contempt a person’s willful disobedience to a court order. However, the general rule is that before a person may be held in contempt for violating a court order, that order must be in definite terms as to the duties thereby imposed on him, and the command must be expressed rather than implied. McCullough v. Lessenberry, 300 Ark. 426, 780 S.W.2d 9 (1989). Here, the court’s order granting him a suspended sentence is not abstracted and appellant does not argue that the order was insufficient to uphold a criminal contempt conviction. Additionally, appellant does not argue that he was denied a jury trial or that he was placed in double jeopardy by the court’s action to find him in criminal contempt. | [
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Per Curiam.
The above-listed cases, seeking review of the denial of unemployment compensation claims, have been consolidated for consideration of motions for rule on the clerk. In each case, a petition for review of the Arkansas Board of Review’s decision was presented to the Clerk of the Court of Appeals more than 20 days from the date the decision of the Board was mailed to the claimant.
Arkansas Code Annotated § ll-10-529(a) (1987) provides that a party to a decision of the Board of Review shall have twenty days from the date the decision is mailed to him in which to request judicial review, which is accomplished by filing a petition for review with the Clerk of the Court of Appeals.
We are constrained to deny the claimant’s motions for rule on the clerk because their petitions for review were filed outside the twenty-day statutory period. We have no authority to extend the deadline for filing a petition for review, Wooten v. Daniels, 271 Ark. 131, 607 S.W.2d 96 (Ark. App. 1980), because the time for appeal from administrative agency determinations is a legislative matter. Lloyd v. Potlatch Corp., 19 Ark. App. 335, 721 S.W.2d 679 (1986).
Motions denied.
Mayfield, J., dissents. | [
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James R. Cooper, Judge.
The appellant was charged with theft of property valued at $2,500 or more, a Class B felony. She was convicted in a jury trial of theft of property valued at less than $2,500.00 but more than $200.00, a Class C felony, and sentenced to three years in the Arkansas Department of Correction. On appeal, she argues that the evidence is insufficient to support the verdict; that the State’s expert witness was erroneously permitted to testify to inadmissible speculation; arid that the absence of a contra pacem clause in the information requires reversal. We affirm.
The State argues that the appellant’s challenge to the sufficiency of the evidence is not preserved for appellate review because she moved for a directed verdict only on the Class B felony charge. At the close of the State’s case, the appellant’s attorney made a motion for directed verdict arguing that there was no evidence presented to prove that the appellant had unlawfully taken property valued at more than $2,500. It was further argued that, other than the testimony that the appellant told one of the witnesses that she had taken an amount of cash under $500, there was no evidence that the appellant committed an offense involving the taking of any money. The appellant renewed her motion at the close of all the evidence. Thus, we find that the State’s argument is without merit.
In reviewing the sufficiency of the evidence on appeal, we view the evidence in the light most favorable to the State and affirm if the verdict is supported by substantial evidence. Bailey v. State, 307 Ark. 448, 821 S.W.2d 28 (1991). Substantial evidence is evidence which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resort to speculation or conjecture. Kendrick v. State, 37 Ark. App. 95, 823 S.W.2d 831 (1992). Decisions regarding the credibility of witnesses is for the trier of fact, and the trier of fact is not required to believe any witness’s testimony, especially the testimony of the accused since she is the person most interested in the outcome of the trial. Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989).
A person commits theft of property if she knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person, with the purpose of depriving the owner thereof. Ark. Code Ann. § 5-36-103(a)(l) (Repl. 1993). Theft of property is a Class C felony if the value of the property is less than $2,500 but more than $200. Ark. Code Ann. § 5-36-103(b)(2)(A) (Repl. 1993).
The appellant was charged in connection with the discovery of a large amount of money missing from the Ashdown Water Department where she was an employee. Danny Harkins, an Arkansas State Police Officer, testified that he interviewed the appellant twice during the course of his investigation. He stated that during the second interview, the appellant told him that she needed some Christmas money and had taken it out of her cash drawer at the water department. She told him that she had written a check for $500.00 and placed it in her cash drawer. He testified that she further stated that she planned on taking the check out and replacing it with cash but that she never did. She later took the check out and destroyed it.
The appellant argues that her statement cannot sup port her conviction pursuant to Ark. Code Ann. § 16-89-111(d) (1987) which provides that a confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed. The appellant, however, admitted at trial that she took money out of her cash drawer and replaced it with a $250.00 check. She further testified that she eventually replaced the money. Thus, the appellant admitted in open court to the unauthorized taking of the money from her cash drawer which amounted to a confession. See Snyder v. City of DeWitt, 15 Ark. App. 277, 692 S.W.2d 273 (1985). We further note that even if the jury had found credible her explanation that she replaced the money, the theft statute makes no exceptions for temporary deprivation. Moore v. State, 299 Ark. 532, 733 S.W.2d 834 (1989). We find the evidence sufficient to support the verdict.
The appellant next argues that the testimony of Ms. Elizabeth Fausett, a CPA who audited the Ashdown Water Department, was erroneously admitted over objections that the testimony was based on speculation and conjecture. Ms. Fausett testified concerning approximately $46,000 that she determined was missing from the Ashdown Water Department. However, given that the appellant admitted to taking and was convicted of taking a lesser amount of money, we fail to see how the appellant was prejudiced by Ms. Fausett’s testimony.
The appellant further argues that the judgment against her is void because the felony information did not contain a contra pacem clause, “Against the peace and dignity of the State of Arkansas,” as required by our state constitution. Ark. Const, art. 7, § 49. However, the appellant did not raise this argument below and the insufficiency of an indictment or information must be challenged prior to trial to be preserved for appellate review. Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994).
Affirmed.
Mayfield, J., dissents. | [
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Melvin Mayfield, Judge.
This is an appeal from the order of the Sebastian County Probate Court denying appellant Rebecca Strickland’s (now McKaughan) petition to terminate the guardianship of her estate.
On April 26, 1977, appellant’s father was appointed guardian of her estate because of her minority. The guardianship was established for the purpose of protecting appellant’s inheritance on a wrongful death settlement in the amount of $52,373.92 from her mother’s estate. Appellant’s father died while she was still a minor and a successor guardian was appointed. Subsequently, appellant was adopted by her aunt and uncle, Darrel and Mary Little, and they were appointed successor guardians.
On November 17, 1993, appellant filed a petition to terminate the guardianship because she had attained her majority.
At a hearing held March 17, 1994, appellant testified that she was 23 years old, is married, and has two children. She testified she recently moved to Mena; that her husband is employed at Lyle Salvage and Used Cars; and that he pays the family expenses. She stated that she is not under any psychiatric care and that she is mentally and emotionally mature enough to handle her money. She has a high-school education and is now attending beauty college. The appellant testified that if the guardianship were terminated she would like to purchase a house and a Certificate of Deposit for each of her children.
Darrel Little, appellant’s co-guardian, testified he could think of no reason why the guardianship should not be terminated; that she has never had a chance to handle her money; and that she should be capable of handling her own affairs.
Ellen Tarkington, Vice-President and Assistant Trust Officer of First National Bank, testified she has been managing appellant’s account for the guardians. She testified the balance of the account is $24,423.13; that appellant gets $500 per month; and that there are some outstanding medical bills. Ms. Tarkington testified that based upon appellant’s prior history, she did not think appellant has used the funds available to her to the best advantage.
At the conclusion of the hearing, the probate judge stated he was familiar with the case and the parties involved, appellant’s circumstances through two marriages and two children by two different husbands, and appellant’s abilities to manage affairs. He stated that appellant is a young lady with no particular skills, married to a man who has moved from place to place and job to job who is not really supporting his family, and to turn the money over to her so it can be dissipated is not fair to her or to the children. The probate judge stated he did not think it was in appellant’s best interest to terminate the guardianship and appointed First National Bank guardian of appellant’s estate.
On March 29,1994, the probate court entered an order which denied appellant’s petition on the finding that:
[D]ue to the Ward’s lack of maturity and judgment, lack of business skills and experience, and inability to properly manage her affairs in the past, it is this Court’s considered opinion that the Ward’s guardianship should in her best interest and welfare, as well as that of her children, continue for the present in order to conserve, protect and preserve the Ward’s Estate and take care of her special needs. That to do otherwise under her present circumstances would dissipate her small estate of approximately $24,000.00 in ways that are not in the Ward’s best interest, and would not encourage her husband to adequately provide for his wife and family. And accordingly the First National Bank of Fort Smith, Arkansas, by and through its Trust Department, shall become Guardian in Succession of the Ward’s Estate, to serve as such without bond, as being federally insured. [See A.C.A. 28-65-401(b)(l)].
Appellant argues the probate court’s decision is not supported by substantial evidence. She says the guardianship was established due to her incapacity as a minor, that she is now 23 years old, and that she has no incapacity.
Arkansas Code Annotated § 28-65-401 (Supp. 1993) provides:
(b) A guardianship may be terminated by court order after such notice as the court may require:
(1) If the guardianship was solely because of the ward’s minority, and either the ward attains his majority or the disability of minority of the ward is removed for all purposes by a court of competent jurisdiction. However, if the court finds upon a proper showing by substantial competent evidence that it is in the best interest of the ward that the guardianship be continued after the ward reaches majority, the court may order the guardianship to continue until such time as it may be terminated by order of the court;
In probate cases, we review the proceedings de novo and reverse the probate judge’s decision on factual matters only if they are clearly erroneous. Marsh v. Hoff, 15 Ark. App. 272, 692 S.W.2d 270 (1985).
Here, appellant has reached her majority. There is no evidence that she is mentally deficient, emotionally unstable, or suffers from any mental illness. She is a high-school graduate and attends beauty college. The purpose of the guardianship was to protect appellant’s interests as a minor. She is now a competent adult and the mother of two children.
Reversed.
Cooper and Pittman, JJ., agree. | [
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John E. Jennings, Chief Judge.
This is an ordinary debt case with questions involving the law of agency. In August 1992, Benny Turner ordered $23,000.00 worth of programs for the 1992 August in Arkansas Festival from Kinko’s Graphics. Kinko’s billed Hot Stuff, Inc., and when Hot Stuff refused to pay, Kinko’s filed suit. A Pulaski County circuit judge, sitting as the trier of fact, awarded judgment for the amount sought and Hot Stuff appeals. We find no reversible error and affirm.
Mark Abernathy is the chief executive officer of Hot Stuff, Inc., and the owner of 59% of the stock in the corporation. Hot Stuff, Inc., apparently operates Juanita’s Mexican Restaurant in Little Rock. Abernathy is also an employee of Blue Mesa, Inc.
August in Arkansas, a Little Rock festival, was Mr. Abernathy’s idea. In 1992 he was “Director of Development” for August in Arkansas, Inc., a non-profit organization created to conduct the festival. Much of the work on the festival was done out of the offices of Hot Stuff, Inc., located in the Juanita’s restaurant building.
Mr. Abernathy was also the president of and sole stockholder in Great Festivals, Inc., organized to help August in Arkansas, Inc. For the 1992 festival, Great Festivals had a contract with August in Arkansas which provided that, if the festival was a success, Great Festivals would be paid $80,000.00 plus 20% of the net profits.
Benny Turner is a “talent buyer.” In 1992 he was an “in-house promoter” at Juanita’s, employed by Hot Stuff, and had an office above the restaurant. Mr. Abernathy could not say whether Turner was an employee of Great Festivals, Inc. Mr. Turner was the music director for August in Arkansas. During 1992, Tamera Harris was an employee of Kinko’s Graphics Corporation, Inc., a printing concern. She testified that during that year she waited on Turner approximately once or twice a week. He ordered printing jobs such as tickets and advertisements for entertainment at Juanita’s and charged those orders on an account entitled “Juanita’s Hot Stuff.” She testified that Hot Stuff paid those charges. The largest order was $140.00. Harris worked on a commission basis.
In August 1992 Turner called her to order $23,000.00 worth of programs for the 1992 August in Arkansas festival. He asked if there would be any problems in charging this to “our account.” It is undisputed that the only account Turner ever charged to was the Hot Stuff account.
Carroll Lamb was the manager of the Kinko’s store and testified that Hot Stuff had had an account there since 1989. He testified that Harris called him about Turner’s program order and he told her that she should call and verify with Abernathy. He also asked for a $5,000.00 down payment which was never received. There is no indication that Harris followed Lamb’s instructions.
Mr. Abernathy testified that the festival directors agreed to have a program printed and for Turner to handle it. He testified that they had not authorized him to charge it to “any specific particular entity.”
Mr. Turner testified that he specifically told Harris he needed the festival programs done for August in Arkansas. He also testified that he was to be paid $20,000.00 if the festival was a success but he was not sure by whom he would be paid.
The programs were delivered in two lots. The first delivery was made to Mr. Turner’s office above Juanita’s on August 12. The bill was made out to “Hot Stuff/Juanita’s” and was signed for by Mr. Turner. The second delivery was made to Riverfront Park the day before the festival. Once again the bill was made out to Hot Stuff and Mr. Turner signed it.
Mr. Abernathy testified that he first became aware that the programs had been charged to Hot Stuff the night before the festival. He testified that he “didn’t give it a second thought” because they had so many things going on.
Unfortunately, the 1992 August in Arkansas Festival was not a financial success. Approximately ten days after the festival, Abernathy contacted Kinko’s to protest the billing of the programs to Hot Stuff.
Although appellant argues that Mr. Turner was not its agent, there is no question that Turner was employed by the corporate defendant. The real issue before the trial court was whether Turner had the authority, expressed or implied, to charge the festival programs to the appellant. Whether an agent is acting within the scope of his actual or apparent authority is a question of fact. Henry v. Gaines-Derden Enters., Inc., 314 Ark. 542, 863 S.W.2d 828 (1993); Crail v. Northwestern Nat’l Ins. Co., 282 Ark. 175, 666 S.W.2d 706 (1984). The agent’s scope of authority, like any other fact question, may be established by circumstantial evidence. See Hawthorne v. Davis, 268 Ark. 131, 594 S.W.2d 844 (1980); Undent v. First Nat’l Bank, 46 Ark. App. 158, 879 S.W.2d 451 (1994); AMI Civ. 3d 104. The general principle of interpretation of scope of authority is that an agent is authorized to do, and to do only, what it is reasonable for him to infer that the principal desires him to do in the light of the principal’s manifestation and the facts as he knows or should know them at the time he acts. Restatement (Second) of Agency § 33 (1958). In determining the scope of authority, circumstances which may be properly considered include the situation of the parties, their relations to one another in the business in which they are engaged, and facts of which the agent has notice respecting the objects which the principal desires to accomplish. Restatement (Second) of Agency § 34. If the authorization is ambiguous, the interpretation acted upon by the parties controls. Restatement (Second) of Agency § 42. Acquiescence by the principal in conduct of an agent whose previously conferred authorization reasonably might include it, indicates that the conduct was authorized. Restatement (Second) of Agency § 43.
We will not reverse a trial court’s finding of fact unless it is clearly erroneous. In the case at bar, we cannot say that the court’s findings that Turner was acting within the scope of his authority was clearly against a preponderance of the evidence.
Affirmed.
Robbins and Rogers, JJ., concur.
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James R. Cooper, Judge.
This is a chancery case arising out of a family settlement agreement. Cecil and Margie Thurman had 198 acres of real estate which they divided into four 40-acre tracts, leaving a 38-acre homestead. They sold the timber from two tracts, then deeded them to their sons, Curtis and Larry. Their other sons, DeWayne and Dennis, received 40-acre tracts with the timber intact. Cecil was paid approximately $29,000 for the timber, and placed these proceeds in a joint account with Margie. Cecil died intestate, and all the property went to Margie by operation of law. Margie put her liquid assets, including $80,000 worth of certificates of deposit into POD accounts in which all four sons were beneficiaries. She made a will leaving the 38-acre homestead and personal property to be divided equally among all four sons. When Margie died the sons had several discussions which culminated in the family settlement agreement, fne purpose of which was to rectify the inequality resulting from the sale of timber on tracts conveyed to Curtis and Larry. An agreement was executed by Curtis, Larry, DeWayne, and Dennis and the executed agreement was taken to an attorney to be put in legal form. After this was done, Dennis stated he had changed his mind and refused to sign the substituted draft. Curtis, Larry, and DeWayne sued to enforce the family settlement agreement. After trial, the chancellor found Item 6, relating to the 38-acre tract, to be vague and unenforceable, but found it to be severable and enforced the remainder of the agreement. From that decision, comes this appeal.
For reversal, the appellant contends that the trial court erred in finding that Item 6 was severable from the remainder of the family settlement agreement, and that the trial court erred in calculating the judgment amount. We find no error, and we affirm.
We first address the appellants’ argument that Item 6 was not severable from the remainder of the family settlement agreement. Item 6 was titled “38 Acres and home site” and provided that:
Land to be divided between Larry, Dewayne, Curtis, and Dennis Thurman. Dennis Thurman portion of land to be adjoining the land he already owns. Larry, Dewayne, and Curtis Thurman to reach an agreement on the location of their portion of the land after the survey is complete and Dennis’ portion has been removed.
The remaining provisions, which were enforced, dealt with uncut timber on tracts deeded to DeWayne and Dennis; cut timber sold previously; the $80,000 certificate of deposit; various items of personal property; and the settlement of bills of the estate.
The determination of severability depends on the intentions of the parties and is therefore an issue of fact; the chancellor’s finding on this issue will be affirmed unless it is clearly against the preponderance of the evidence. Ellison v. Tubb, 295 Ark. 312, 749 S.W.2d 650 (1988). The Ellison Court quoted from 17 Am. Jur. 2d Contracts § 325 (1964) as follows:
As a means of ascertaining the intention of the parties, various tests have been adopted. According to some authorities, the criterion is to be found in the question whether the quantity, service, or thing as a whole is of the essence of the contract. If it appears that it is to be performed only as a whole, the contract is entire. Thus, the best test is said to be whether all of the things, as a whole, are of the essence of the contract: that is, if it appears that the purpose is to take the whole or none, the contract is entire; otherwise, it is severable. Another test supported by a number of authorities is that a contract is entire when, by its terms, nature, and purpose, it contemplates that each and all of its parts are interdependent and common to one another and to the consideration, and is severable, when, in its nature and purpose, it is susceptible of divisions and apportionment, and has two or more parts in respect to matters or things contemplated and embraced by the contract which are not necessarily dependent upon each other.
Ellison, supra, 295 Ark. at 314.
We think that the chancellor was correct in finding Item 6 to be severable. It is clear that the 38-acre tract was of minor significance to the parties. The main purpose of the agreement was the equalization of shares in light of the removal of timber from the tracts deeded to Curtis and Larry, and Item 6 contained no provision forwarding the equalization of the brothers respective shares. Furthermore, the fact that they merely agreed to reach an agreement regarding the 38 acres later indicates that the parties did not consider this issue to be dependent upon the remaining issues agreed upon in the settlement agreement.
Nor do we agree with the appellants’ contention that there was no binding contract because there was no “meeting of the minds” between the parties. This argument is premised, in part, upon the appellants’ contention that Item 6 was an essential term of the agreement. We find no merit in this argument because, as we have noted, we think that Item 6 was not an essential term but was instead subordinate to these terms of the agreement designed to equalize the brothers’ respective shares. Furthermore, a “meeting of the minds” does not depend upon the subjective understanding of the parties, but instead requires only objective manifestations of mutual assent for the formation of a contract. Dziga v. Muradian Business Brokers, Inc., 28 Ark. App. 241, 773 S.W.2d 106 (1989). Although we agree that sending the agreement to an attorney to be put “in legal form” is a factor militating against a finding of intent to form a binding contract, it nevertheless appears from the record that the original agreement was in fact executed by all of the parties. Giving due deference to the chancellor’s superior position to weigh the credibility of the witnesses, we cannot say that he clearly erred in finding that the parties mutually intended to enter into a binding contract. See Ellison v. Tubb, supra.
Finally, we address the appellants’ contention that the chancellor erred in finding that the appellants should pay the estate the sum of $12,968.50, as shown in the notes attached to the agreement. The appellants assert that the contract was ambiguous in this respect and that the doctrine of contra proferentum should be applied so as to resolve the ambiguity against his brother, Larry Thurman, who drafted the agreement. We do not agree. Family settlement agreements are favorites of the law, and equity is anxious to encourage and enforce them. Jones v. Balentine, 44 Ark. App. 62, 866 S.W.2d 829 (1993). In the case at bar, the chancellor arrived at his decision regarding the judgment amount after hearing the testimony of the parties regarding their intentions. Under these circumstances, we decline to disturb the chancellor’s findings by application of a rule of construction.
Affirmed.
Robbins and Mayfield, JJ., agree. | [
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John E. Jennings, Chief Judge.
Robert R. Morgan was employed as the CEO and chairman of the board of Clinton State Bank. The written contract provided that he would be employed for a period of five years beginning March 1, 1987. On October 15, 1989, Morgan was fired.
On January 29, 1990, some two years before the expiration of the employment contract, Morgan brought suit for damages for breach in Pulaski County Chancery Court. The chancellor held that Mr. Morgan was entitled to damages for breach incurred through the date of trial and awarded $89,000.00 for wrongful termination and directed the bank to repurchase Mr. Morgan’s home for $85,500.00 within thirty days of the date of entry of the judgment. No appeal was taken from that order.
On November 25, 1992, Mr. Morgan filed a second complaint in Pulaski County Chancery Court seeking damages for the balance of the term of the employment contract. The case was subsequently transferred to circuit court and the circuit court granted Clinton State Bank’s motion to dismiss.
The issue on appeal is whether, after having filed suit for damages for breach of employment contract prior to the expiration of the term of the contract, Mr. Morgan can then file a second lawsuit seeking damages for breach related to the balance of the term. The circuit judge held that he could not and we agree.
The question is one of law. In Van Winkle v. Satterfield, 58 Ark. 617, 25 S.W. 1113 (1894), Justice Battle said:
A servant who has been wrongfully discharged by his employer before the time for which he was hired has expired has these remedies: “First, he may consider the contract as rescinded, and recover on a quantum meruit what his services were worth, deducting what he had received for the time during which he had worked. Second, he may wait until the end of the term, and then sue for the whole amount, less any sum which the defendant may have a right to recoup. Third, he may sue at once for breach of the contract of employment.” He, however, can adopt only one. [Emphasis added and citations omitted.]
To the extent that the language in Van Winkle is dicta, it is venerable dicta. It has also been cited with approval as recently as 1989. See Jim Orr and Associates, Inc. v. Waters, 299 Ark. 526, 773 S.W.2d 99 (1989). In Waters the supreme court quoted extensively from Van Winkle, recognized that it was probably the minority view, but expressly declined to overrule it. While it is true that the issue in Waters was the measure of damages when the employee brings the suit prior to the expiration of the term of the contract, and not whether a subsequent action could be brought, we nevertheless are persuaded that the decision there is controlling. The same policy considerations relating to the multiplicity of lawsuits which underlie the doctrine of res judicata mitigate against permitting one or more successive actions to recover damages for breach of an employment contract. If the rule in Van Winkle is to be changed it would seem preferable, perhaps, to change it on the front end, i.e., to permit recovery for future damages in an action brought prior to the expiration of the time. The court in Waters declined to do so and we are bound by that decision.
For the reasons stated, the decision of the circuit judge is affirmed.
Affirmed.
Mayfield, J., concurs.
Robbins, J., dissents. | [
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Melvin Mayfield, Judge.
This is an appeal from a summary judgment. Although the appellants’ brief states that the appeal should be filed in the Arkansas Supreme Court because the cause of action involved is a tort, the Arkansas Supreme Court transferred the case to this court apparently because the question presented is not a “question about the law of torts.” See Supreme Court Rule 1-2(16).
On September 22, 1992, the appellants, Connie and John Jeter, contracted to buy a house owned by Clay Simpson. The property was listed for sale with appellee Griffco, Inc., d/b/a The Griffin Company. Appellee Joey Pianalto was the listing and sales agent for Griffco. The sale was closed on October 15, 1992.
On February 19, 1993, the appellants filed a complaint against Simpson, Griffco, and Pianalto. The complaint alleged a number of problems and defects in the house resulting from a malfunctioning septic system, a cracked foundation, a driveway that needed replacement, and the lack of proper insulation under the house and around the water pipes. The complaint alleged that Pianalto knowingly misrepresented the quality and condition of the property with the intention that appellants would act on the representations; that this induced the appellants to close the purchase of the residence; and that Griffco was vicariously liable for Pianalto’s actions. The only issue involved in this appeal concerns the sufficiency of the representations to support appellants’ cause of action. See Delta School of Commerce, Inc. v. Wood, 298 Ark. 195, 766 S.W.2d 424 (1989) (listing the elements of an action for deceit).
The appellees answered the complaint and filed a motion for summary judgment alleging there was no genuine issue as to any material fact and that they were entitled to judgment as a matter of law. Attached to appellees’ brief in support of their motion were the Seller’s Disclosure form, the Real Estate Contract, and an Inspection and Repairs form. Appellants denied the appellees were entitled to summary judgment and filed the depositions of Pianalto and Connie and John Jeter and a brief in support of their denial.
On February 25, 1994, the trial judge entered an order granting appellees’ motion for summary judgment. Subsequently, after a settlement was reached on a third-party complaint by Simpson against the builder of the house, appellants’ complaint against the appellees was dismissed with prejudice.
Appellants contend on appeal that the trial court erred in granting summary judgment because there were material issues of fact to be decided.
Summary judgment is an extreme remedy and should be granted only when a review of the pleadings, depositions, and other filings reveal that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Baxley v. Colonial Ins. Co., 31 Ark. App. 235, 792 S.W.2d 355 (1990). The court views the testimony in the light most favorable to the party against whom the judgment is sought, and when reasonable minds might differ as to conclusions to be drawn from the facts disclosed, a summary judgment is not proper. Culpepper v. Smith, 302 Ark. 558, 561, 792 S.W.2d 293, 294 (1990).
Here, the appellants alleged that Pianalto made the following representations concerning the condition of the property: (1) “I am looking at the Disclosure Statement at this moment and it says everything is okay with the house”; (2) “My brother, Rick Pianalto, built the house and I can tell you personally that there are no problems with the house”; and (3) “I know Clay Simpson personally and know him to be a fine person.”
In her deposition, Connie Jeter testified that Pianalto made the statements to her over the telephone approximately two weeks prior to closing; that he never mentioned that the Jeters could have professional inspectors to check the house; that they had never seen the Disclosure Statement at that time; that you listen to your real estate agent because you know he is not going to lead you astray; that she did not know at that time that Pianalto was an agent of the seller and not her agent; and that she found out after the sale was closed that there were a number of problems with the house.
The trial judge found, after considering the pleadings and briefs of counsel, that there was no evidence to indicate the first or third statement was untrue; that the second statement was only Pianalto’s “opinion” as to the condition of the house; and that there were no material issues of fact for trial.
In making these findings the trial judge relied upon Cannaday v. Cossey, 228 Ark. 1119, 312 S.W.2d 442 (1958). In that case it was alleged the sellers had falsely represented their house to be a “good house.” Our supreme court held that this was such a general statement that it amounted only to an expression of opinion and could not “be relied upon by the purchasers as an assurance against the various defects that are apt to be found in a 28-year-old dwelling.” The court said statements that things are “good,” or “valuable,” or “large,” or “strong,” necessarily involve to some extent an exercise of individual judgment, and even though made absolutely, the hearer must know they can be only expressions of opinion. 228 Ark. at 1121, 312 S.W.2d at 444.
Under the rules applying to motions for summary judgment as set out in Culpepper v. Smith, supra, we think the statement in the instant case that “My brother, Rick Pianalto, built the house and I can tell you personally that there are no problems with the house” could be considered under the circumstances here as more than a general statement of opinion. Because of Pianalto’s relationship with the builder, we think the fact finder could reasonably find that the statement implied first-hand knowledge concerning the condition of the house and that the appellants were, therefore, entitled to rely on the statement made by the real estate salesman. See also Fausett & Company, Inc. v. Bullard, 111 Ark. 176, 229 S.W.2d 490 (1950), (the buyer of property is entitled to rely on statements of the seller where the seller has peculiar knowledge of the subject matter of the sale).
Therefore, we think there was a genuine issue of a material fact to be decided and summary judgment should not have been granted.
Reversed and remanded.
Rogers and Cooper, JJ., agree. | [
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James R. Cooper, Judge.
The appellant was convicted in a jury trial of delivery of a controlled substance and sentenced to twenty-five years in the Arkansas Department of Correction and fined $25,000. On appeal, he argues that the trial court erred in excluding the testimony of his defense witness. We agree and reverse and remand.
During jury selection at the appellant’s trial, each party was asked to identify its witnesses. The prosecutor announced its potential witnesses and the appellant’s counsel indicated that he did not intend to call any witnesses. After the jurors were chosen, the trial court proposed administering the oath to all the potential witnesses. The trial court asked the appellant’s counsel whether he had any witnesses who needed to be sworn. The appellant’s counsel responded that he did have a witness who needed to be sworn and explained that he had just been notified of the witness. The trial court then directed this witness to take the oath with the other potential witnesses. The witness was apparently not identified, and the prosecution did not object or inquire about the witness or his identity.
At the conclusion of the State’s case, the appellant’s counsel indicated that he planned to call this witness, Mr. Jerry King, to testify. This was the only witness the appellant called on his behalf. The prosecutor objected to Mr. King’s testimony because the witness had not been disclosed during the jury voir dire or discovery. The trial court subsequently allowed the prosecutor to voir dire Mr. King to determine the nature of his testimony. Mr. King testified that he is the appellant’s brother and was present in the appellant’s house on the night the appellant allegedly sold cocaine to an undercover officer. He testified to events of that night and stated that the appellant did not sell any drugs to the officer. The prosecution objected to the witness’s testimony on the grounds that the witness was an alibi witness rather than a rebuttal witness. The trial court refused to allow Mr. King to testify on the finding that he should have been disclosed to the prosecution.
We find the trial court erred in excluding Mr. King’s testimony. The appellant argues and the State concedes that the record does not disclose that the prosecutor requested discovery from the appellant. Arkansas Rule of Criminal Procedure 18.3 provides the applicable discovery rule in criminal cases:
Subject to constitutional limitations, the prosecuting attorney shall, upon request, be informed as soon as practicable before trial of the nature of any defense which defense counsel intends to use at trial and the names and addresses of persons whom defense counsel intends to call as witnesses in support thereof.
Thus, without a showing that the prosecutor actually requested information regarding the appellant’s defense and potential witnesses pursuant to Rule 18.3, it was error to sanction the appellant for not providing this information to the prosecutor. We therefore reverse and remand for proceedings consistent with this opinion.
Reversed and remanded.
Robbins and Mayfield, JJ., agree. | [
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John B. Robbins, Judge.
John W. DeHaven and Michael G. Todd, d/b/a DeHaven, Todd & Company, and the Maumelle Company have appealed from a foreclosure decree and judgment of the Pulaski County Chancery Court awarding T&D Development, Inc., $147,817.59 and foreclosure against the property securing the debt. We hold that this appeal is moot and dismiss.
In 1987, John and Marilyn Wright borrowed $176,000.00 from First Jacksonville Bank & Trust and secured the debt with a mortgage. In 1989, the Wrights gave a deed to the mortgaged property to the Maumelle Company, which signed an assumption agreement with First Jacksonville Bank & Trust. Appellant Todd was chairman of the board and appellant DeHaven was president and chief executive officer of the Maumelle Company. In' 1991, appellants DeHaven and Todd, as partners of DeHaven, Todd & Company, signed an assumption agreement for the note and mortgage with First Jacksonville Bank & Trust. The note later went into default.
In September 1993, T&D Development was incorporated. John Wright, one of its incorporators, owned 50% of its shares, and his daughter owned the other 50%.
The next month, First Jacksonville Bank sold the note and mortgage to T&D Development for $110,000.00, which was less than the outstanding debt. On October 11, 1993, T&D Development filed a complaint for judgment on the debt and foreclosure against appellants. One of appellants’ defenses was that T&D Development was a sham corporation and the alter ego of John and Marilyn Wright. Appellants also argued that T&D Development had paid, rather than purchased, the note and that it had done so on behalf of the Wrights. Therefore, appellants argued, appellee was entitled only to indemnity for the $110,000.00 actually paid to the bank rather than the full amount of the debt.
After trial, the chancellor found that T&D Development was not an alter ego of the Wrights and was organized in accordance with Arkansas law. He entered a decree of foreclosure and awarded judgment for appellee against appellants in the amount of $147,817.59.
Appellants state in their brief that appellee received $142,000.00 from the foreclosure sale and another $10,858.06 from garnishments against appellants. They argue that Mr. Wright therefore received $42,858.06 more than he paid to the bank and was entitled only to the amount of loss he sustained. Appellants also argue that T&D Development was simply Mr. Wright’s alter ego and that it was incorporated for the sole purpose of bringing an action on the noté and mortgage. They argue that, because payment by a maker of a note extinguishes the note, appellee only had a right of indemnity against appellants. For the reasons expressed below, we do not address the merits of this appeal.
Relying on Shepherd v. State Auto Property and Casualty Insurance Co., 312 Ark. 502, 850 S.W.2d 324 (1993), and Lytle v. Citizens Bank of Batesville, 4 Ark. App. 294, 630 S.W.2d 546 (1982), appellee has filed a motion to dismiss this appeal contending that it is moot as a result of appellants’ having already satisfied the judgment. We agree.
Appellants filed their notice of appeal on March 14, 1994. In an affidavit attached to the motion to dismiss, Mr. Wright states that a foreclosure sale was conducted on March 24, 1994; from the $142,000.00 proceeds, $141,667.08 was applied toward the judgment. He states that, on April 7, 1994, appellants’ attorney delivered a certified check to appellee’s attorney for $3,070.00 in partial satisfaction of the judgment; on April 13, 1994, the tenant on the foreclosed property paid $1,670.00 to satisfy the remaining amount owed appellee. Mr. Wright states that these payments satisfied the judgment in full.
Also attached to the motion to dismiss is a copy of a letter from appellee’s attorney to appellants’ attorney, stating:
My client is prepared to go forward with executing the documents whereby Dehaven Todd & Co. and The Maumelle Co. will pay off the remainder of the Judgment in favor of T&D. George tells me, however, that Jay DeHaven will not agree to dismiss the appeal that he intends to continue pursuit of the appeal. We do no [sic] agree that the payments pursuant to this agreement are in lieu of an appeal bond. We merely acknowledge that the payments are being received for application against the judgement [sic] against Dehaven, Todd and The Maumelle Co. By accepting payments from you and your clients, T&D does not waive any arguments that we might choose to make in connection with the appeal.
In response, appellants strongly dispute appellee’s characterization of their payment of the judgment as voluntary. They argue that this appeal is not moot because, even though they did not post a supersedeas bond, the money was “forcefully extracted” from them. They also argue that the cases relied upon by appellee in its motion to dismiss are distinguishable because appellants filed their notice of appeal before they paid appellee. Appellants argue that they were coerced into paying “$3,095.00 of the more than $152,858.06 owed on the date of the foreclosure sale....” They state: “The final payment thus coerced represents less than two (2) percent of the Judgment, after ninety-eight (98) percent had been forcibly collected and another forceful attempt was pending.” Appellants further argue that this case is distinguishable from the cases relied upon by appellee because, in those cases, the appellants voluntarily paid the judgments, with no executions or garnishments, before filing a notice of appeal.
In Shepherd v. State Auto Property and Casualty Insurance Co., it appears that the cross-appellant did voluntarily pay the judgment before filing its notice of appeal. However, we cannot so distinguish Lytle v. Citizens Bank of Batesville, wherein we dismissed an appeal as moot because the appellant had satisfied a deficiency judgment he owed the bank. The bank contended that the appeal was moot due to the voluntary satisfaction of the judgment and the fact that the appellant had not posted a supersedeas bond. We agreed and stated:
Some jurisdictions hold that the payment of a judgment under any circumstances bars the payer’s right to appeal. However, in the majority of jurisdictions, the effect of the payment of a judgment upon the right of appeal by the payer is determined by whether the payment was voluntary or involuntary. In other words, if the payment was voluntary, then the case is moot, but if the payment was involuntary, the appeal is not precluded. The question which often arises under this rule is what constitutes an involuntary payment of a judgment. For instance, in some jurisdictions the courts have held that a payment is involuntary if it is made under threat of execution or garnishment. There are other jurisdictions, however, which adhere to the rule that a payment is involuntary only if it is made after the issuance of an execution or garnishment. Another variation of this majority rule is a requirement that if, as a matter of right, the payer could have posted a supersedeas bond, he must show that he was unable to post such a bond, or his payment of the judgment is deemed voluntary. For a discussion of the various rules, along with citations to the various jurisdictions, see: Defeated Party’s Payment or Satisfaction of, or Other Compliance With, Civil Judgment as Barring His Right to Appeal, Annot. 39 A.L.R.2d 153 (1955); 4 Am. Jur. 2d Appeal and Error, § 260 at 755 (1962); Metropolitan Development and Housing Agency v. Hill, 518 S.W.2d 754 (Tenn. App. 1974).
We adopt the majority rule as the better reasoned rale. Thus, if appellant’s payment was voluntary, then the case is moot, but if the payment was involuntary, this appeal is not precluded. In applying this rule to the facts at bar, we must determine whether the payment made by appellant was voluntary or involuntary. In doing so, we believe that one of the most important factors to be considered is whether appellant was able to post a supersedeas bond at the time he satisfied the judgment. The record supports the conclusion that he could have done so.
There is nothing in the record which shows appellant even requested the court to set the amount of a supersedeas bond, much less to show his financial inability to pay such cost. Obviously, appellant had the financial ability and resources to borrow $13,364 so he could satisfy the judgment in full. There is no evidence to indicate the posting of a supersedeas bond would have been a greater or lesser financial burden on appellant than his full payment of the obligation imposed under the judgment. For whatever reasons, appellant simply chose to forego his right to request a bond in an effort to stay the trial court’s judgment and any subsequent proceedings to enforce it.
In view of the state of the record before us, we find appellant’s payment was voluntary. Therefore, we hold this appeal should be dismissed because appellant’s satisfaction of the trial court’s judgment rendered the issues on appeal moot.
4 Ark. App. at 296-98.
Appellants argue that Lytle does not apply to this case because, in that case, the payment was made before the notice of appeal was filed. Appellants argue that, unlike the Lytle case, they filed their notice of appeal before making a voluntary payment. We cannot, however, distinguish Lytle. Our review of the record in the Lytle case shows that the appellant in that action filed his notice of appeal on March 2, 1981. On March 18, 1981, a judicial sale of land was held to satisfy the judgment. On March 31,1981, an order confirming the sale and awarding a deficiency judgment was entered. On May 7, 1981, a partial satisfaction of the judgment was filed, which recited that the deficiency judgment had been paid in full.
It is therefore clear that, in the Lytle case, the appellant made a payment toward satisfaction of the judgment after filing the notice of appeal, just as appellants did in the case before us. The Lytle case, therefore, is not distinguishable and applies here.
Additionally, here, as in Lytle, there is nothing in the record to show that appellants requested the court to set the amount of a supersedeas bond or appellants’ financial inability to pay for such a bond. As in Lytle, therefore, we hold that this appeal must be dismissed because appellants’ satisfaction of the trial court’s judgment rendered the issues on appeal moot.
Dismissed.
Cooper and Mayfield, JJ., agree. | [
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James R. Cooper, Judge.
The appellant was convicted in a jury trial of battery in the first degree and sentenced to seven years in the Arkansas Department of Correction. On appeal, he argues that the trial court erred in failing to give jury instruction AMCI 2d 705 on the use of deadly physical force in defense of a person and AMCI 2d 704 on use of physical force in defense of a person.
At trial, the appellant admitted that he had stabbed the victim, a correctional officer at the Tucker Maximum Security Unit. He testified, however, that he was defending himself. Other witnesses corroborated his version of the facts. At the close of the evidence, the appellant requested that the jury be instructed on the justification defenses on the basis that he was justified in defending himself from the unlawful actions of the correctional officers. The trial court refused on the finding that the testimony was insufficient to warrant the giving of these instructions.
The State asks that we affirm the appellant’s conviction on the ground that his abstract is deficient under Ark. Sup. Ct. R. 4-2(a)(6) because he did not abstract his proffered instructions. We note that the proposed instructions are included in the transcript. Rule 4-2(a)(6) requires that an appellant provide an abstract or abridgment of the record consisting of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, or other matters in the record as are necessary for an understanding of all questions presented to the Court for decision. Rule 4-2(b)(2) provides that if the Court finds the abstract to be flagrantly deficient, the judgment may be affirmed for noncompliance with the Rule, or if the Court considers that action to be unduly harsh, the Court may allow the appellant time to revise his brief, at his own expense, to conform to Rule 4-2(a)(6).
In the instant case, we have concluded that affirmance would be unduly harsh and therefore, we will allow the appellant to file a new brief which conforms to the abstracting requirements of Rule 4. This brief must be filed no later than thirty days from the date of this opinion. The State may then respond within thirty days of the date the appellant’s brief is filed and the appellant’s reply brief will be due fifteen days after the State’s responsive brief is filed.
Remanded for rebriefing.
Mayfield and Rogers, JJ., agree. | [
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John E. Jennings, Chief Judge.
Carl Clausen was charged in Independence County Circuit Court with battery of his three-year-old stepdaughter. He was found guilty by a jury of battery in the second degree and sentenced by the court to two years imprisonment and a fine of $1,000.00. Clausen’s conviction rested largely on the testimony of Dr. Brock Allen, who testified that the child told him during his examination of her that appellant had caused her injury. The circuit judge found at trial that the child was not competent to testify.
For reversal Clausen contends that the trial court erred in admitting the doctor’s testimony under Ark. R. Evid. 803(4) and that the admission of the doctor’s testimony violated appellant’s rights under the Confrontation Clause of the Sixth Amendment of the United States Constitution. We find no error and affirm.
Over appellant’s objection, Dr. Allen, an emergency room physician in Batesville, testified:
On March 17, 1993 I was on duty at White River Medical Center emergency room. On that date, I conducted an examination of Samantha Johnson. State’s Exhibit #23 is a copy of my record of my examination of Samantha Johnson. When I examined Samantha I saw that she had numerous bruises on different portions of her body and different stages of healing. When you first sustain a bruise usually it will be in a bluish color and as it ages it will become more brown, so some of these bruises were new and some of them were old, and they were on various parts of her body, and after examining her I felt that her injuries were consistent with possible child abuse. State’s Exhibit #5 depicts Samantha Johnson’s ear ánd an abrasion consistent with what I’ve seen due to cigarettes in the past, on other children. State’s Exhibit #6 depicts Samantha Johnson’s back and there is a browning portion up there, and then on the buttocks there’s some fresher, bluer, deeper marks, and down on the leg appears tabe some fresher marks. Brown areas are older in nature. Bluer marks are from a more recent injury. Normally, a bruise dissipates within 21 days. She had bruises consistent with injuries that had occurred at different stages, at different days. These bluer bruises were probably within a week of age and these older bruises, the brownish looking ones, were at least 14 to 21 days in age. Samantha Johnson struck me as being a very bright three year old and answered questions very appropriately. I was fearful that she may be very withdrawn, but she was able to answer questions as I directed toward her, and was very willing to do so. After I completed my examination of this child, I asked the child who caused these injuries to her.
In making a diagnosis and a determination in any child abuse case, it is part of my procedure and diagnosis to ask the victim who the perpetrator was. The way that I always ask this is I try to ask this question openly, and I said can you tell me what happened. And then she told me at that point that she was hit with a stick by Carl. And that’s what she told me. She also indicated that she was whipped on several occasions. She stated that the injuries she had on her body were done to her by Carl.
The circuit judge admitted this evidence under Rule 803(4) of the Arkansas Rules of Evidence:
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
Appellant argues that the testimony of the doctor was inadmissible under the general principles that we stated in Huls v. State, 27 Ark. App. 242, 770 S.W.2d 160 (1989). In Huls we quoted from United States v. Renville, 779 F.2d 430 (8th Cir. 1985), with approval:
Statements of identity seldom are made to promote effective treatment; the patient has no sincere desire to frankly account for fault because it is generally irrelevant to an anticipated course of treatment. Additionally, physicians rarely have any reason to rely on statements of identity in treating or diagnosing a patient. The statements are simply irrelevant in the calculus of devising a program of effective treatment.
Huls, 27 Ark. App. at 246.
The Court in Renville, however, recognized an exception to the general rule that a declarant’s statements disclosing the identity of the person said to be responsible for his injuries is inadmissible:
We believe that a statement by a child abuse victim that the abuser is a member of the victim’s immediate household presents a sufficiently different case than that envisaged by the drafters of Rule 803(4) that it should not fall under the general rule. Statements by a child abuse victim to a physician during an examination that the abuser is a member of the victim’s immediate household are reasonably pertinent to treatment. [Emphasis in original.]
Renville, 779 F.2d at 436. In Stallnacker v. State, 19 Ark. App. 9, 715 S.W.2d 883 (1986), we expressly approved the exception stated in Renville and agreed with the Eighth Circuit’s stated rationale for the exception. See Stallnacker, 19 Ark. App. at 11, 12. McCormick’s appraisal is not at variance with the holdings in Renville and Stallnacker. “The test for admissibility is whether the subject matter of the statements is reasonably pertinent to diagnosis or treatment — an apparently objective standard. Descriptions of cause are similarly allowed if they are medically pertinent, but statements of fault are unlikely to qualify.” John W. Strong, McCormick on Evidence § 277 at 489 (4th ed. 1992).
Appellant attempts to distinguish Stallnacker on the basis that, unlike the situation in Stallnacker, the victim in the case at bar had been interviewed by two social workers before the child saw Dr. Allen. We do not agree that this is a valid distinction. Compare White v. Illinois, 502 U.S. 346 (1992). We hold that the trial court did not err in admitting the doctor’s testimony under Rule 803(4).
Appellant’s second argument is that the admission of Dr. Allen’s testimony violated his right under the Sixth Amendment of the United States Constitution, and under the equivalent provision of the Arkansas Constitution, to be confronted with the witnesses against him.
In Idaho v. Wright, 497 U.S. 805 (1990), the United States Supreme Court affirmed the Idaho Supreme Court’s reversal of a trial court’s admission of testimony by a doctor concerning statements made by a 2 1/2-year-old child as to sexual abuse. The doctor’s statement was admitted by the trial court under a general residual hearsay exception provided for in the Idaho Rules of Evidence. The United States Supreme Court specifically held that the supreme court of Idaho had “properly focused on the presumptive unreliability of out-of-court statements and on the suggestive manner in which Dr. Jambura conducted the interview.”
The Court in Wright said that a statement may pass muster under the Confrontation Clause in either of two ways: where the hearsay statement falls within a firmly rooted hearsay exception or where it is supported by a showing of particularized guarantees of trustworthiness, citing Ohio v. Roberts, 448 U.S. 56 (1980). The Court also approved a number of factors that other courts had considered in determining whether hearsay statements by a child witness in child sexual abuse cases are reliable. Those considerations include, (1) spontaneity and consistent rep etition; (2) mental state of the declarant; (3) use of terminology unexpected of a child of similar age; (4) lack of motive to fabricate. Wright, 497 U.S. at 821. The Court also made it clear that these factors are not exclusive. Also see generally Smith v. State, 303 Ark. 524, 798 S.W.2d 94 (1990); George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991).
There are two important differences between Idaho v. Wright and the case at bar. First, the doctor’s testimony in Wright was admitted under the residual hearsay exception, not the exception for statements for the purposes of medical diagnosis or treatment. Second, Dr. Allen’s testimony describing his manner of questioning the child was not at all like the manner of questioning by the doctor in the Wright case, which the United States Supreme Court set forth at length. See Idaho v. Wright, 497 U.S. at 810 and 811.
Is a statement made for purposes of medical diagnosis or treatment a “firmly rooted hearsay exception”? The decision in White v. Illinois, 502 U.S. 346 (1992), indicates that it is. Wig-more said that the exception rested chiefly on an opinion of Lord Ellenborough in Aveson v. Kinnaird, 6 East 188 (1805). 6 Wig-more, Evidence § 1714 (Tillers rev. 1983). We recognize that the court in Ring v. Erickson, 983 F.2d 818 (8th Cir. 1992), held that this particular application of the exception is not “firmly rooted.” But see United States v. Barrett, 8 F.3d 1296 (8th Cir. 1993). Nevertheless the child in White v. Illinois was four years old and, in that context, the Supreme Court appears to have treated this application of the exception as “firmly rooted.”
Under the circumstances presented we have also considered the illustrative factors set forth by the Court in Idaho v. Wright. In the case at bar the child’s statements appear to be spontaneous and consistent. There is no use of terminology unexpected of a child of her age, and there is no evidence of any motive to fabricate. We conclude that the trial court’s admission of Dr. Allen’s testimony did not violate appellant’s rights under the Confrontation Clause of the Sixth Amendment.
Affirmed.
Robbins and Rogers, JJ., agree. | [
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Melvin Mayfield, Judge.
This is an appeal from the order of the Pulaski County Chancery Court which granted the appellee’s motion for summary judgment and vacated an award granted by an arbitrator.
On January 3, 1995, we certified this case to the Arkansas Supreme Court pursuant to Rule l-2(d)(2) of the Rules of the Supreme Court and Court of Appeals. The supreme court declined to accept the case and remanded it to this court for decision. Jurisdiction to determine the issues presented on appeal is therefore in this court.
Appellant, Jane Doe, was a bus driver for the appellee, Central Arkansas Transit Authority, which is a public transportation company. She was off work beginning January 4, 1991, through March 26, 1991, due to a job-related injury. Several days before her return to work, appellant took a return-to-work physical, including a drug test, pursuant to appellee’s anti-drug policy. On March 26, 1991, appellant returned to work and, after completing work that day, was notified that her drug test was positive for cocaine and she was discharged.
The appellant’s union filed a grievance on appellant’s behalf pursuant to a collective bargaining agreement entered into between the union and the appellee in April of 1990. The union alleged that the appellant was not discharged for “just cause” under the terms of the parties’ labor contract. The appellee refused to reinstate the appellant and the matter was submitted to arbitration pursuant to Article 4 of the agreement. The sole issue to be decided was whether appellant was discharged for “just cause.” On November 12, 1992, the arbitrator issued an opinion ruling that although appellant had violated the anti-drug program, appellee did not have “just cause” to discharge her. The arbitrator reinstated appellant subject to another return-to-duty drug test; random drug testing for five years; and the satisfactory completion of an Employee Assistance Program.
Appellee filed a complaint in Pulaski County Chancery Court to vacate the arbitrator’s award alleging that there is a well-defined public policy against having drug-impaired employees in the work place; that there is a well-defined public policy against having drug users operate commercial vehicles such as a public transit bus; and that enforcing the arbitrator’s award violates public policy.
On April 1, 1993, the chancellor entered an order granting the appellee’s motion for summary judgment and vacated the award. This action was based upon a finding that the arbitrator’s award reinstating appellant was contrary to public policy and that the arbitrator acted in excess of his authority.
On appeal, appellant argues: (1) the trial court failed to give proper deference to the arbitrator’s findings; (2) the trial court erred in concluding the award violated public policy; (3) the trial court erred in concluding the award did not draw its essence from the labor agreement; and (4) the trial court erred in concluding the arbitrator exceeded his authority.
At the outset, we note two things. One, our opinion is confined to the facts in this case and does not hold that a driver for a public transit company may drive a bus while under the influence of drugs. Second, the facts in this case were uncontested before the chancellor. Normally on a summary judgment appeal the evidence is viewed most favorably for the party resisting the motion and any doubts and inferences are resolved against the moving party. In a case where the parties agree on the facts that rule is inapplicable, and we simply determine whether the appellee was entitled to judgment as a matter of law. City of Little Rock v. Pfeifer, 318 Ark. 679, 887 S.W.2d 296 (1994). And because our Uniform Arbitration Act (Ark. Code Ann. §§ 16-108-201 — 16-108-224 (1987)) does not apply to employee-employer disputes, we look to prior Arkansas law, to the common law, and, at the parties’ request, to the federal law for the resolution of the issues involved in this appeal.
I. JUDICIAL DEFERENCE
In the early case of Kirten v. Spears, 44 Ark. 166 (1884), our supreme court said unless the illegality of the deci sion appears upon its face:
[T]he court will not interfere on the ground merely that the arbitrators have mistaken the law, or have advisedly decided contrary to the rules of established practice observed by courts of law and equity.
If the parties wanted exact justice administered according to the forms of law, they should have allowed their case to take the usual course. But for reasons satisfactory to themselves, they have chosen to substitute for the courts of law a private forum, and there is no injustice in holding them bound by the result.
44 Ark. at 173-74 (citations omitted). In Alexander v. Fletcher, 206 Ark. 906, 175 S.W.2d 196 (1943), the court stated:
The general rule and the one supported by the great weight of authority, with reference to awards is: “Every reasonable intendment and presumption is in favor of the award, and it should not be vacated unless it clearly appears that it was made without authority, or was the result of fraud or mistake, or of the misfeasance or malfeasance of the appraisers.”
206 Ark. at 909-10 (citations omitted).
II. PUBLIC POLICY
In W.R. Grace & Company v. Local 759, 461 U.S. 757 (1983), the United States Supreme Court recognized a public policy exception to the enforcement of an arbitrator’s award. The Court stated:
As with any contract, however, a court may not enforce a collective-bargaining agreement that is contrary to public policy.. .. Such a public policy, however, must be well defined and dominant, and is to be ascertained “by reference to the laws and legal precedents and not from general considerations of supposed public interests.” (Citations omitted.)
461 U.S. at 766.
In United Paperworkers International Union, AFL-CIO v. Misco, Inc., 484 U.S. 29 (1987), the United States Supreme Court emphasized that the courts play only a limited role when asked to review the decision of an arbitrator. The Court stated:
In W.R. Grace, we recognized that “a court may not enforce a collective-bargaining agreement that is contrary to public policy,” and stated that “the question of public policy is ultimately one for resolution by the courts.” We cautioned, however, that a court’s refusal to enforce an arbitrator’s interpretation of such contracts is limited to situations where the contract as interpreted would violate “some explicit public policy” that is “well defined and dominant, and is to be ascertained ‘by reference to the laws and legal precedents and not from general considerations of supposed public interests.’” In W.R. Grace, we identified two important public policies that were potentially jeopardized by the arbitrator’s interpretation of the contract: obedience to judicial orders and voluntary compliance with Title VII of the Civil Rights Act of 1964. We went on to hold that enforcement of the arbitration award in that case did not compromise either of the two public policies allegedly threatened by the award. Two points follow from our decision in W.R. Grace. First, a court may refuse to enforce a collective-bargaining agreement when the specific terms contained in that agreement violate public policy. Second, it is apparent that our decision in that case does not otherwise sanction a broad judicial power to set aside arbitration awards as against public policy. Although we discussed the effect of that award on two broad areas of public policy, our decision turned on our examination of whether the award created any explicit conflict with other “laws and legal precedents” rather than an assessment of “general considerations of supposed public interests.” At the very least, an alleged public policy must be properly framed under the approach set out in W.R. Grace, and the violation of such a policy must be clearly shown if an award is not to be enforced (citations omitted).
484 U.S. at 43.
We do not believe the arbitrator’s decision in the instant case violated public policy under the standards enunciated by the United States Supreme Court in Grace and Misco.
An Arkansas case cited by the appellee has recognized a public policy in favor of a drug policy which was initiated due to the high accident rate and risk factors relating to the nature of the drilling business and which prohibited an employee from having any detectable level of alcohol or drugs in the employee’s body while on the employer’s work site. See Grace Drilling Co. v. Director of Labor, 31 Ark. App. 81, 790 S.W.2d 907 (1990)(failing a required drug test constituted misconduct connected with the work for the purposes of unemployment benefits). And the parties cite and discuss a federal case that has recognized a public policy against the operation of a vessel while under the influence of drugs or alcohol. See Exxon Shipping Co. v. Exxon Seamen’s Union, 993 F.2d 357 (3d Cir. 1993) (award reinstating helmsman terminated for a positive drug test taken after ship ran aground violates public policy expressed in Coast Guard Regulations requiring testing and providing that employees who test positive for drugs be denied employment as a crew member or removed from duties directly affecting the safety of the vessel’s navigation or operations). Also, a federal case has recognized a public policy against the operation of potentially hazardous equipment and machinery by employees under the influence of illegal drugs. See Georgia Power Company v. International Brotherhood of Electrical Workers, Local 84, 707 F. Supp. 531 (N.D. Ga. 1989), aff’d, 896 F.2d 507 (11th Cir. 1990) (award reinstating chronic heavy drug user who had sufficient levels of THC metabolic in his body at the time of the drug screening to make it probable that he was under the influence of marijuana violated public policy). And a federal court has recognized that public policy requires strict adherence to nuclear safety rules. See Iowa Electric Light and Power Company v. Local 204, IBEW, 834 F2d. 1424 (8th Cir. 1987)(affirming the reversal of an award that reinstated an employee who intentionally violated federally mandated safety regulations defeating an interlock system [after being denied permission] for no better reason than to get an early start for lunch). See also Delta Air Lines Pilots Assn. International, 861 F.2d 665 (11th Cir. 1988) (public policy condemns operation of passenger airliner by pilots who are under the influence of alcohol contrary to FAA regulations).
We think the above factual situations are distinguishable from those in the instant case. The Grace Drilling Company case was not decided by an arbitrator and, therefore, the standard of deference given to the decision of an arbitrator was not required in that case. Also, that case involved the question of whether a discharged employee could draw unemployment benefits, and the case turned on employee misconduct not on public policy considerations with regard to enforcing an arbitrator’s decision under a collective-bargaining agreement. The other cases involved situations where an employee was under the influence of drugs or alcohol while actually performing his duties or where the employee intentionally violated safety regulations.
But the appellant in the instant case did not actually drive a bus under the influence of illegal drugs. Moreover, the arbitrator found that the appellant was a good employee with a 10-year proven track record; that she was reliable, “year in and year out,” a safe bus driver; that her “one recent miscue” was a one-shot aberration and occurred when she attended a party, the night before the drug test, at which she drank “spiked” punch; that there was no evidence of drug use on the job; and that it was possible to condition her reinstatement on adequate safety measures to protect bus riders and other vehicle occupants. The arbitrator recognized that public safety is “the most important consideration” and based appellant’s reinstatement on certain conditions including random drug testing for a period of 60 months and the completion of an employee assistance program. He also stated that he would “without any apprehension” ride in a vehicle driven by the appellant.
II. AUTHORITY OF ARBITRATOR
Because appellant’s next two arguments are related, we discuss them together. The appellant contends the chancellor erred in concluding that the award did not draw its “essence” from the labor agreement and that the arbitrator exceeded his authority.
Article 2, Mutual Cooperation, Section 2 of the collective bargaining agreement states:
The Company will continue to exercise the exclusive right to set its policies; . . . and to make reasonable rules and regulations governing the operation of its business and the conduct of its employees.
Article 3, Violation of Company Rules, Section 1 of the agreement states:
A) No employee will be discharged or disciplined without sufficient and just cause. No employee will be discharged, disciplined, or taken out of service for violation of Company’s rules for improper conduct without a fair and impartial hearing (except that the Company shall have the right to remove forthwith any employee against whom there is evidence of dishonesty beyond a reasonable doubt the same right applying to employees under the influence of intoxicating liquors or controlled drugs that are illegal by law).
Appellee’s anti-drug policy is contained in Resolution No. 91-1 of the Board of Directors of Central Arkansas Transit Authority which was revised in January of 1991 to provide:
Section 5.. Any employee, or applicant for employment, of the Authority who fails to pass any required drug screening procedure shall be terminated and shall be prohibited from employment related to Central Arkansas Transit Authority.
Section 6. All employees shall be subject to urine drug testing . . . :
4. Return to Duty. Prior to returning to duty after having refused a drug test, or after an on-the-job injury which results in a two week absence from duty. Those employees who refuse a drug test will be given an initial return to duty drug test and additional unannounced drug tests for a period up to 60 months. More than one refusal of a drug test will result in termination.
Unless the arbitral decision does not draw its essence from the collective bargaining agreement a court is bound to enforce the award and is not entitled to review the merits of the contract dispute. W.R. Grace & Co., supra. An award draws its essence from the agreement if the interpretation can in any rational way be derived from the agreement, viewed in the light of its language, its context, and any other indicia of the parties’ inten tion; only where there is a manifest disregard of the agreement, totally unsupported by principles of contract construction and the law, may a reviewing court disturb the award. Super Tire Engineering Co. v. Teamsters Local Union No. 676, 721 F.2d 121 (3d Cir. 1983). Reviewing courts cannot interfere with an arbitrator’s interpretation unless it can be said with positive assurance that the contract is not susceptible of the arbitrator’s interpretation. International Brotherhood of Electrical Workers v. Sho-Me Power Corp., 715 F.2d 1322, 1325 (8th Cir. 1983).
The parties agree that the scope of the arbitrator’s authority is a question of contract interpretation. Under the law, that is to be determined from reading the arbitration agreement, and the award will be set aside by the court only when the objecting party proves that the arbitrator clearly exceeded the power granted in the agreement. State Auditor v. Minnesota Assn. of Professional Employees, 504 N.W.2d 751 (Minn. 1993).
Here, Article 3 of the bargaining agreement provides that an employee shall not be discharged or disciplined without sufficient and just cause. Further, the agreement provides that an employee shall not be discharged, disciplined, or taken out of service without a fair and impartial hearing, except in the case of an employee against whom there is evidence of dishonesty beyond a reasonable doubt and employees under the influence of intoxicating liquors or controlled drugs that are illegal by law. However, the exception does not apply to employees who simply fail a drug test.
The appellant took a drug test on March 22 and it was not until she returned to work on March 26, and had driven the bus all that day, that she was told that her test on March 22 was positive. The arbitrator specifically found that “there was no evidence” of impairment of her job functions when she drove the bus on March 26. Thus, it is clear that under Article 3, the appellant could not be discharged forthwith because of the result of the drug test and could not be discharged after a hearing unless the positive test on March 22 constituted “just cause.” Under the law discussed previously, the interpretation of the contract and the facts involved in the dispute are both matters to be determined by the arbitrator. See Super Tire Engineering Co. v. Local 676, supra. See also, Carnes, Arbitration in Arkansas, Arkansas Law Notes 17 (1992).
Although the arbitrator found there was not just cause to discharge appellant, he found just cause to discipline her. In making this determination the arbitrator took into account appellant’s unblemished record of service and the fact that her positive drug test was a one-shot aberration, and he required random tests for five years. This was in keeping with the collective bargaining agreement since the policy adopted by appellee provided that “employees who refuse a drug test will be given an initial return to duty and additional unannounced drug tests for a period of up to 60 months.”
We cannot conclude there was a “manifest disregard of the agreement,” that the award did not draw its essence from the collective bargaining agreement, or that the arbitrator exceeded his authority.
We have considered the statement in the dissenting opinion that “appellee proposed a resolution to the collective bargaining agreement” and the dissent’s leap from that statement to the implied conclusion that the union’s failure to pursue its grievance contesting the implementation of the drug policy had the effect of changing the contract between the union and the appellee. But what actually happened was that the appellee adopted the resolution establishing an anti-drug policy in keeping with Article 2 of the contract. Although the union could have pursued its grievance as to the adoption of the policy, its failure to do so did not change the collective bargaining agreement between the union and the company. Thus, it was the arbitrator’s job to interpret the bargaining agreement — which he did. Moreover, the arbitrator did not decide that the drug policy was unreasonable. He simply considered the issue of “just cause” to discharge the appellant under a provision of the agreement between the parties.
Also, we are not unmindful of appellee’s argument that the arbitrator exceeded his authority because the parties stipulated that “the sole issue to be decided” by the arbitrator was “whether Jane Doe was discharged by Respondent for just cause, i.e. whether Jane Doe had violated the Anti-Drug Program for Employees.” However, if the only issue to be decided was whether Ms. Doe failed the drug test, there was no need to submit this matter to arbitration. But, to say that is the only issue is to ignore the plain language of the collective bargaining agreement and render it worthless. The fact of the matter is that the parties agreed to the “just cause” provision in their agreement and to the arbitration process, and we find no public policy under the specific factual circumstances here involved or in the interpretation of the contract by the arbitrator that would give the trial court authority to usurp the method selected by the parties to resolve their dispute in this case.
Reversed.
Rogers, J., concurs.
Pittman, J., dissents. | [
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James R. Cooper, Judge.
The appellant appeals from a decision of the Workers’ Compensation Commission finding the appellee’s sinus difficulties a compensable occupational disease. On appeal, the appellant argues that the Commission erred in finding that the appellee proved by clear and convincing evidence that she suffered an occupational disease as defined in the Arkansas Workers’ Compensation Act. We affirm.
In determining the sufficiency of the evidence to sus tain the findings of the Workers’ Compensation Commission, we review the evidence in the light most favorable to the Commission’s findings and affirm if they are supported by substantial evidence. Grimes v. North American Foundry, 42 Ark. App. 137, 856 S.W.2d 309 (1993). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). We do not reverse a decision of the Commission unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission. Willmon v. Allen Canning Co., 38 Ark. App. 105, 828 S.W.2d 868 (1992).
Where the condition involved is a disease (as opposed to an accidental injury), the claim is compensable only if the disease is an “occupational” one as defined in our Workers’ Compensation Act and the claimant proves by clear and convincing evidence a causal connection between the employment and the disease. See Ark. Code Ann. § 11-9-102(4), - 601(e) (1987); Osmose Wood Preserving v. Jones, 40 Ark. App. 190, 843 S.W.2d 875 (1992). An “occupational disease” is defined as any disease that results in disability or death that arises out of or in the course of the occupation or employment. Ark. Code Ann. § 11-9-601(e)(l)(1987).
The fact that the general public may contract a disease is not controlling; the test of compensability is whether the nature of the employment exposes the worker to a greater risk of the disease than the risk experienced by the general public or workers in other employments. Osmose Wood Preserving v. Jones, supra; Sanyo Mfg. Corp. v. Leisure, 12 Ark. App. 274, 675 S.W.2d 841 (1984). An occupational disease is characteristic of an occupation, process or employment where there is a recognizable link between the nature of the job performed and an increased risk in contracting the occupational disease in question. Sanyo Mfg. Corp. v. Leisure, supra. The increased risk test differs from the peculiar risk test in that the distinctiveness of the employment risk can be contributed by the increased quantity of a risk that is qualitatively not peculiar to the employment. 1 Arthur Larson, The Law of Workmen’s Compensation § 6.30 (1994) (emphasis in original).
The appellee is a school teacher for the appellant. In the summer of 1989, a new heating and air conditioning system for the school was installed. As a result, leaks developed in various classrooms causing mold to grow in the appellee’s classroom. The appellee suffered from pre-existing seasonal allergies which became constant and more severe after the mold developed in her classroom. The parties stipulated that the presence of this mold in the appellee’s classroom caused her sinus difficulties which required several surgeries.
The appellant contends that the appellee did not prove that she suffered from an occupational disease because she did not show that due to the nature of her employment she was exposed to a greater risk of contracting the disease than the risk to which the general public is exposed. The appellant’s argument is based on the premise that the increased risk was not one that may reasonably be expected to be present given the nature of the appellee’s employment. The appellant cites several of our cases dealing with occupational disease to support its argument. We find, however, that the analyses from our previous cases support a finding that the appellee suffered from an occupational disease.
In Osmose Wood Preserving v. Jones, supra, the claimant was employed to replace and treat power line utility poles which required him to dig holes around the base of the poles. The claimant worked in Northwest Arkansas which is saturated with poultry production houses and where histoplasma capsulatum is endemic to the area. We affirmed the Commission’s decision that the claimant contracted an occupational disease, histoplasmosis, on the findings that the claimant was exposed to chicken feces and areas with the histoplasmosis fungus on a daily basis due to the places where he was required to work, that this placed the claimant at a greater risk of contracting the fungus due to his work, and that the histoplasmosis was peculiar to the claimant’s job because of its location. It should be obvious that all persons performing such work would not necessarily be exposed to chicken feces and that the claimant’s position was unique.
In Hope Brick Works v. Welch, 33 Ark. App. 103, 802 S.W.2d 476 (1991), we affirmed the Commission’s finding that the claimant contracted an occupational disease, silicosis, on the basis that the claimant was employed in a process which exposed him to alumino-silicate dust used in brick making and that the hazard of silicosis was a hazard characteristic of the employment. Similarly, the hazard in the case at bar, although not necessarily characteristic of the occupation of a teacher, was characteristic of the appellee’s particular employment causing her to be exposed to the mold leading to a greater risk of contracting the sinus difficulties.
Here, the Commission found that although the appellee’s development of sinus difficulties as a result of the exposure to mold in the classroom is not necessarily peculiar to the occupation of a teacher, the exposure was “certainly peculiar and characteristic of this particular employment in that claimant’s [appellee’s] employment exposed her to a greater risk of that disease.” The Commission found that the disease arose out of a hazard increased by the employment and that the particular employment hazard was a lengthy and abnormal exposure to mold in her classroom which placed the appellee at an increased risk of developing sinus difficulties. The Commission concluded that the appellee proved by clear and convincing evidence that she sustained an occupational disease arising out of and in the course of her employment.
From our review of the record, we conclude that there is substantial evidence to support the Commission’s decision.
Affirmed.
Jennings, C.J., Pittman and Rogers, JJ., dissent. | [
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John B. Robbins, Judge.
David Wayne Smith has appealed from an order of the Sebastian County Chancery Court dismissing his petition for relief from a visitation order entered by the Logan County, Oklahoma, District Court. The Sebastian County Chancery Court found that it had no jurisdiction to grant the relief requested. We affirm.
Appellant and Margaret Smith were divorced in Logan County, Oklahoma. In that decree, they were awarded joint custody, and the mother’s home was designated as the child’s primary residence. In 1990, the child’s mother was sent to prison, and the Oklahoma court awarded custody to appellant. In August 1992, appellant took the child to live in Oklahoma on a temporary basis after her mother was released from prison. In December 1992, appellee, Frances Cotton, the child’s grandmother, filed a petition for guardianship with the Oklahoma court. The child returned to live with appellant in March 1993, where she has remained. In May 1993, appellant appeared for the guardianship hearing and learned that appellee had amended her petition to request visitation with the child. The Oklahoma court gave appellee visitation rights, over appellant’s objection to the jurisdiction of the Oklahoma court.
In July 1993, appellant filed a petition with the Sebastian County Chancery Court for dissolution of the Oklahoma order granting visitation rights to appellee. In his petition, appellant argued that the Oklahoma court did not have jurisdiction of the case.
The Sebastian County Chancery Court found that it did not have jurisdiction to grant the relief appellant requested. The chancellor stated:
5. This court finds that it can not relieve the father of the obligation to honor the maternal grandmother’s visitation rights awared [sic] to her in the Oklahoma court’s last order because it does not have jurisdiction to do so. The parties were divorced and custody of their child was decided by order of the Logan County District Court of Oklahoma, the custody order was later modified by the same court in the same case, and finally the same court entered the visitation order in the guardianship case from which the plaintiff father asks this court, an Arkansas court, for relief. Although the child has been living with his father in Arkansas for more than six months and the plaintiff alleges Arkansas is now the child’s “home state” as defined in A.C.A. 9-13-202(5), Oklahoma remains the residence of both the children’s mother, a contestant in the divorce action, and the child’s maternal grandmother, a contestant in the guardianship action. Under §(d) of the Parental Kid-naping [sic] Prevention Act, 28 USC §1738A, the jurisdiction of the court of the state which made the original child custody determination continues so long as that state remains the resident [sic] of any contestant, and so long as that state continues to have jurisdiction under its law.
6. The plaintiff not only alleges that the Oklahoma court does not have jurisdiction at this time because Arkansas is now the home state of the child, but he claims the Oklahoma court did not have jurisdiction to enter the visitation order in the guardianship case because at the time guardianship proceeding was filed the child had lived in Oklahoma only five months, not the six months required by A.C.A. 9-13-203(a)(l) to give Oklahoma home state status. However, when the guardianship action was filed the mother of the child, a contestant in all of the prior custody proceedings in case no. JFD-84-226 in the same Oklahoma court as the guardianship case, remained an Oklahoma resident. §(d) of the Parental Kidnapping Prevention Act states in pertinent part:
The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long s [sic] the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.
It is this court’s finding that the word “contestant” in the above quoted statute refers to a contestant in the original custody action, and, clearly the mother was a contestant in the divorce proceeding when custody was awarded jointly to her and the child’s father. She was also a contestant when the decree was later modified by the same Oklahoma court and custody was awarded to the father. She was not a contestant in the guardianship case in the same Oklahoma court as entered the prior custody orders, presumably because she was in an Oklahoma prison, but she nevertheless, remained a resident of Oklahoma.
The chancellor then held that the Oklahoma order was made consistently with the provisions of the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A, and must receive full faith and credit. The chancellor found that the Oklahoma court retained jurisdiction of this issue.
Appellant argues that the chancellor erred because he believed the residence of the child’s mother was the sole determining factor in deciding whether jurisdiction remained in Oklahoma. Appellant argues that, under the PKPA and the Uniform Child Custody Jurisdiction Act (UCCJA), which has been adopted by both Arkansas and Oklahoma, the chancellor should have considered the mother’s residence only after deciding whether Oklahoma otherwise had jurisdiction under Oklahoma law. Appellant states: “Instead, [the chancellor] was preoccupied with the fact that Margaret Smith continued to reside in Oklahoma and he based his decision on that single point.” From our review of the record, however, we are convinced that the chancellor did consider whether Oklahoma had jurisdiction under its law as set forth in the UCCJA.
Appellant correctly states that, because the PKPA is a federal statute, it preempts the UCCJA, and this Court’s analysis should begin with the provisions of the PKPA. The PKPA provides in pertinent part:
(c) A child custody determination made by a court of a State is consistent with the provisions of this section only if—
(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met:
(A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;
(B)(i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;
(C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse;
(D)(i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or
(E) the court has continuing jurisdiction pursuant to subsection (d) of this section.
(d) The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.
(f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if —
(1) it has jurisdiction to make such child custody determination; and
(2) The court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.
“Home state” is defined in § 1738A(b)(4) as “the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months. . . .”
Section (d) of the PKPA sets forth two requirements that must be met in order for a state’s jurisdiction to continue after it has made a child custody determination: (1) the state must have jurisdiction according to its own laws, which in this case, include the provisions of the UCCJA; and (2) one of the contestants must continue to reside in the state. Appellant argues that, here, the chancellor only focused on whether one of the contestants continued to reside in Oklahoma and has overlooked the requirement that a determination should be made as to whether Oklahoma had jurisdiction under the UCCJA. We do not agree. The record clearly shows that the chancellor considered whether Oklahoma had jurisdiction under the UCCJA and that, under its provisions, the Oklahoma court still had jurisdiction to enter the visitation order.
The applicable provisions of the UCCJA are set forth in Ark. Code Ann. §§ 9-13-201 through 228 (Repl. 1993). In § 9-13-203, it is stated:
(a) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six (6) months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or
(2) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one (1) contestant, have a significant connection with this state and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
(3) The child is physically present in this state and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
(4)(i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivisions (a)(1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.
(b) Except under subdivisions (a)(3) and (4), physical presence in this state of the child, or of the child and one (1) of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.
(c) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.
Appellant argues that, when appellee filed the petition in Oklahoma in December 1992, the child had lived in Oklahoma only four months and, therefore, Arkansas continued to be her home state under the UCCJA. The definition of “home state” used in the PKPA is identical to that set forth in the UCCJA. See Atkins v. Atkins, 308 Ark. 1, 2, 823 S.W.2d 816 (1992); Slusher v. Slusher, 31 Ark. App. 28, 32, 786 S.W.2d 843 (1990); Ark. Code Ann. § 9-13-202(5) (Repl. 1993).
Appellant has focused his argument on the “home state” provision of the UCCJA set forth in § 9-13-203(a)(l). That statute, however, also provides in § 9-13-203(a)(2) that a court is competent to modify a child custody determination if:
It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one (1) contestant, have a significant connection with this state and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships. . . .
Therefore, from the record before us, we cannot say that the Oklahoma court lacked jurisdiction to modify the custody order or that the Arkansas court erred in according the Oklahoma order full faith and credit.
Affirmed.
Cooper and Mayfield, JJ., agree. | [
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John B. Robbins, Judge.
This is an appeal from a decree of divorce from bed and board entered by the Pulaski County Chancery Court on December 15, 1993. The case arose in December 1992 when appellee Pam Tortorich filed her complaint seeking separate maintenance from appellant Tony Tortorich, who counterclaimed for divorce. In September 1993, Pam Tortorich amended her complaint to request a divorce from bed and board which was eventually granted by the court on December 15, 1993. Tony Tortorich’s counterclaim for absolute divorce was denied and dismissed. Although on May 24, 1995, we affirmed a later order of contempt entered by the trial court in this matter, it is not part of the present appeal.
After Pam graduated from Arkansas State University in the spring of 1978 with a degree in Business Education, the parties married in January 1979. Tony, who also graduated from Arkansas State University, began his four years of dental school at the University of Tennessee in Memphis shortly after the parties married. The parties eventually had three children during their marriage: Joseph, age twelve; Jordan, age nine; and Andrew, age five. In 1986, Tony opened his oral surgery practice which he incorporated in 1987 under the name “Anthony L. Tortorich, D.D.S., P.A.” The value of this professional association is the primary focus of the present appeal.
Appellant Tony Tortorich raises the following issues on appeal: (1) the trial court erred in its valuation of Anthony L. Tortorich, D.D.S, P.A.; (2) the trial court erred in ordering him to pay all of Mrs. Tortorich’s expert witness fees in excess of six thousand ($6,000) dollars; (3) the trial court erred in setting alimony and child support; (4) the trial court erred in failing to limit the duration of its order to the time the decree is in effect; (5) the trial court erred in ordering him to pay one-half of Mrs. Tortorich’s attorney’s fees; and (6) the trial court erred in awarding Mrs. Tortorich one-half of his 1993 bonus. We reverse and remand in part and affirm in part.
Dr. Tortorich first contends that the trial court erred in its valuation of his professional association. He specifically contends that the trial court erred in finding there was approximately $180,000 of business goodwill in Anthony L. Tortorich, D.D.S., P.A. He argued before the trial court, and now argues on appeal, that Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987), is applicable and controlling, and required the trial court to find that his oral surgery practice had no business goodwill. We agree and reverse on this point.
Richard Schwartz, a certified public accountant, testified as Mrs. Tortorich’s expert witness on the value of Dr. Tortorich’s professional association. Mr. Schwartz testified at length concerning his basis for arriving at a figure of approximately $180,000 for business goodwill. Mr. Schwartz testified on cross-examination that he considers goodwill to be “the capability of that business to generate, through patronage of those customers or patients, that excess earnings which develops the value of goodwill.” He went on to testify that “goodwill is earned as a relationship of continuation of that practice which generates above average earnings.” Mr. Schwartz admitted on cross-examination that Dr. Tor-torich obtains “most of his patients through referrals” from other dentists. Testimony indicated that because Dr. Tortorich is an oral surgeon whose primary practice is tooth extraction he has very few repeat patient visits compared to those of a regular dentist.
Mr. Schwartz based his opinion of the value of the professional association primarily on the adjusted book value of the association’s tangible assets, and goodwill asertained by a capitalization of “excess earnings.” The capitalization of “excess earnings” method of evaluation was explained by Mr. Schwartz to involve computing a weighted average of Dr. Tortorich’s net operating income in excess of the net operating income of an average oral surgeon over the preceding three-year period. The resulting difference, capitalized at 40%, would represent the value of Dr. Tortorich’s goodwill.
Mr. Schwartz said that he referred to comparable sales as a reality check on his evaluation amount. Of the comparable sales, however, Mr. Schwartz acknowledged that none were in Arkansas; some were combination general dentist/oral surgeon practices; he could not testify that the comparables did not include office buildings; and he did not know whether the practices sold had one, two or three dentists. Mr. Schwartz further acknowledged that if he were an oral surgeon who was purchasing Dr. Tortorich’s practice, he would want Dr. Tortorich to continue working for the professional association for six months after the purchase, and to have a “no compete” agreement from Dr. Tortorich.
Keith Crass, also a certified public accountant, testified that he found Dr. Tortorich’s professional association had no goodwill because his practice is highly personalized and its revenues are generated from Dr. Tortorich’s personal skills. Testimony showed that 80% of Dr. Tortorich’s revenues were derived from the extraction of wisdom teeth; consequently most of his patients do not have repeat visits. Mr. Crass corroborated Mr. Schwartz’s testimony and stated that 90% of appellant’s patients are new patients who are generally referred from other dentists. Mr. Crass went on to testify that the primary reason he considered this particular practice to have no goodwill is because Dr. Tortorich has no continuing patient base, or continuing customers so to speak, that an interested buyer would be willing to purchase. Mr. Crass distinguished Dr. Tortorich’s oral surgery practice from a pediatrician’s practice. Mr. Crass testified there was goodwill in a pediatrician’s practice because children tend to return to the same doctor for care throughout their childhood years; thus, the pediatrician has a continuing relationship with his client base.
The chancellor observed that Mr. Schwartz had much more expertise in the valuation of professional associations and closely held corporations than Mr. Crass. The chancellor found that because this valuation was not based on Dr. Tortorich actually selling his practice and going “to Havana,” that the valuation was reasonable. The chancellor concluded that the professional association had a value of $240,000.00 and ordered Dr. Tortorich to pay half of that amount to Mrs. Tortorich. Of the $240,000.00 value placed on the oral surgery practice, approximately $180,000.00 was goodwill.
In Wilson v. Wilson, id., the supreme court defined the type of goodwill which would be considered marital property. Wilson involved facts very similar to those in the present case. In Wilson, the parties were married during the husband’s attendance at medical school. Their marriage lasted for approximately eighteen years during which time Dr. Wilson began his practice as an orthopedic surgeon and eventually was hired by Orthopedic Associates, Inc.
In the course of setting a value for Dr. Wilson’s interest in Orthopedic Associates, Inc., the supreme court held that, although the prevailing view was that goodwill of a professional association or business is marital property subject to division, certain factors must be considered in determining whether the goodwill is actually a business asset. The supreme court adopted the Nebraska Supreme Court’s position regarding goodwill as set forth in Taylor v. Taylor, 222 Neb. 721, 386 N.W.2d 851 (1986), and quoted from that opinion:
[W]here goodwill is a marketable business asset distinct from the personal reputation of a particular individual, as is usually the case with many commercial enterprises, that goodwill has an immediately discernible value as an asset of the business and may be identified as an amount reflected in a sale or transfer of such business. On the other hand, if goodwill depends on the continued presence of a particular individual, such goodwill, by definition, is not a marketable asset distinct from the individual. Any value which attaches to the entity solely as a result of personal goodwill represents nothing more than probable future earning capacity, which although relevant in determining alimony, is not a proper consideration in dividing marital property in a dissolution proceeding.
Wilson v. Wilson, 294 Ark. at 205, 741 S.W.2d at 647 (quoting from Taylor v. Taylor, 222 Neb. at 731, 386 N.W.2d at 858).
The supreme court in Wilson went on to hold that:
We believe the view expressed in Taylor is a sound one, and conclude that, for goodwill to be marital property, it must be a business asset with value independent of the presence or reputation of a particular individual — an asset which may be sold, transferred, conveyed or pledged. Thus, whether goodwill is marital property is a fact question and a party, to establish goodwill as marital property and divisible as such, must produce evidence establishing the sala-bility or marketability of that goodwill as a business asset of a professional practice.
Wilson, 294 Ark. at 205-06, 741 S.W.2d at 647.
While we agree with the chancellor’s finding that Mr. Schwartz’s testimony was persuasive to an extent, we fail to find any evidence that Dr. Tortorich’s professional association had “value independent of the presence or reputation of [this] particular individual — an asset which may be sold, transferred, conveyed, or pledged.”
Dr. Tortorich is a sole practitioner whose personal skills developed his reputation with other dentists. Dr. Tortorich’s practice, as the evidence clearly showed, was almost wholly dependent on referrals from other dentists who referred patients to him based on his reputation alone. Without the presence or reputation of this particular individual the oral surgery practice had no value independent of its tangible assets. The chancellor adopted Mr. Schwartz’s opinion of the goodwill value of Anthony L. Tortorich, D.D.S., P.A., and held that this goodwill had a value of approximately $180,000 and was a marital asset. It appears that Mr. Schwartz arrived at his opinion by capitalizing the above average net income Dr. Tortorich has been able to generate in his practice. This does not, however, purport to distinguish the superior personal earnings capacity of Dr. Tortorich from any goodwill of the professional association independent of his continued presence and reputation. Upon our de novo review we conclude that the value of Dr. Tortorich’s P.A. is $61,086 and that it has no goodwill value independent of Dr. Tortorich’s presence and reputation. We do not hold, as suggested in the dissenting opinion, that a solo professional practice can never have business goodwill independent of the personal goodwill of the practitioner. We simply hold that pursuant to Wilson, Mrs. Tor-torich had the burden of proving that Dr. Tortorich’s professional association had business goodwill independent of Dr. Tortorich’s personal goodwill if it was to be considered a marital asset. This she failed to do. The chancellor’s finding to the contrary was clearly erroneous and is reversed.
Dr. Tortorich secondly contends that the trial court erred in ordering him to pay all of Mrs. Tortorich’s expert witness fees in excess of $6,000. Mrs. Tortorich essentially concedes that, if we reverse on the first point, Mr. Schwartz’s fee should also be remanded for reconsideration. While we are aware that the chancellor also considered Mr. Schwartz’s time spent in tracing assets as part of her basis for awarding this recovery, we reverse and remand on this point for the chancellor to reevaluate the award in light of our above holding. See Yockey v. Yockey, 25 Ark. App. 321, 758 S.W.2d 421 (1988).
For Dr. Tortorich’s third point on appeal he contends that the chancellor erred in setting alimony and child support, contending that the amounts set were excessive because of Mrs. Tor-torich’s ability to earn a living and the children’s actual needs. The chancellor awarded Mrs. Tortorich $1000 per month as alimony. She considered the correct factors in making this determination.
The award of alimony is a matter which addresses itself to the sound discretion of the chancellor, and the award will not be reversed absent an abuse of discretion. Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988). Wilson v. Wilson, supra. While we find that the chancellor’s award of alimony was not an abuse of discretion, the division of marital assets must be considered in setting alimony. Because we are reversing a substantial award which the chancellor made to Mrs. Tortorich for the goodwill of Dr. Tortorich’s professional association, we reverse and remand the award of alimony to enable the chancellor to reconsider the appropriate amount of alimony. See Harvey v. Harvey, supra; Womack v. Womack, 16 Ark. App. 139, 698 S.W.2d 306 (1985).
The chancellor awarded child support in the amount of $6,000 per month for the three children. She based her decision on the Family Support Chart applicable at the time of the opinion. See Ark. Code Ann. § 9-12-312(a)(2) (Supp. 1993). The chancellor determined, based on expert testimony, that Dr. Tor-torich’s net monthly take home pay was in excess of $18,000, and that 32% was the appropriate rate of support pursuant to the Family Support Chart.
Dr. Tortorich argues on appeal that certain living expenses alleged by Mrs. Tortorich were inflated or even non-existent. He also contends that the amount awarded as support far exceeds the amount of money the children actually need for living expenses.
The Family Support Chart is to be used as a guide and is not binding on the chancellor. A chancellor’s finding as to child support will not be disturbed on appeal unless it is shown that the chancellor abused her discretion. Belue v. Belue, 38 Ark. App. 81, 828 S.W.2d 855 (1992). While we review chancery cases de novo on appeal, the findings of the chancellor will not be reversed unless clearly against a preponderance of the evidence. Roark v. Roark, 34 Ark. App. 250, 809 S.W.2d 822 (1991).
The chancellor referred to the Family Support Chart and Dr. Tortorich’s income to arrive at her conclusion that Mrs. Tortorich was entitled to $6,000.00 per month for child support. The chancellor noted in her decision that Dr. Tortorich contended he needed $4,200.00 per month for his expenses, while at the same time contended that the three children did not need $6,000.00 each month for their combined expenses. The chancellor stated that Dr. Tortorich failed to establish a reason for deviating from the Family Support Chart. We do not find that the chancellor abused her discretion in setting the amount of support for the children and affirm on this point.
Dr. Tortorich contends in his fourth argument that the trial court erred in failing to limit the duration of its order to the time the decree is in effect. Specifically he argues that the chancellor should have considered the possibility that an absolute divorce may later be granted the parties which would supersede this decree of divorce from bed and board. Consequently, he contends that the award of possession of the marital home to Mrs. Tortorich until the parties’ youngest child attains the age of eighteen, without mentioning the possibility of supersession by decree of absolute divorce, was error. However, in the first sentence of his argument he correctly notes, “this court may determine that this issue is not ripe for review. . . .” Support and custody matters are always open to review and this issue is not ripe for consideration at this time. We consider this question to be academic in nature and it is contrary to our practice to issue advisory opinions. Wright v. Keffer, 319 Ark. 201, 890 S.W.2d 271 (1995).
In his fifth point on appeal Dr. Tortorich contends that the trial court erred in ordering him to pay one-half of Mrs. Tor-torich’s attorney’s fees. As noted by Dr. Tortorich, the chancellor ordered him to pay one-half of Mrs. Tortorich’s attorney’s fees prior to her pre'senting evidence of the total amount of attorney’s fees which she incurred.
Our courts have recognized the inherent power to award attorney’s fees in domestic relations proceedings. Price v. Price, 29 Ark. App. 212, 780 S.W.2d 342 (1989). The chancellor’s authority to award attorney’s fees in divorce actions and the amounts of such awards are matters within the discretion of the chancery court. Id. However, in the present case the chancellor appears to have ordered Dr. Tortorich to pay one-half of Mrs. Tortorich’s attorney’s fees without knowledge of the sum those fees would total. Where the chancellor did not know what the amount of the fees would be at the time they were awarded, we must find not an abuse of discretion but a failure to exercise her discretion. See Quinn v. State, 25 Ark. App. 33, 751 S.W.2d 363 (1988). We reverse the award of attorney’s fees to Mrs. Tortorich and remand for the chancellor to exercise her discretion on this issue.
Dr. Tortorich’s final argument on appeal is that the chancellor erred in awarding Mrs. Tortorich one-half of his 1993 bonus. He argues that the amount awarded Mrs. Tortorich failed to give credit for his payment of certain expenses which bene-fitted both parties. As Mrs. Tortorich correctly points out, Dr. Tortorich attempts to read certain things into the decree and findings of the chancellor which are simply not present.
Under Ark. Code Ann. § 9-12-315 (1993), the chancellor has the authority to divide one-half of the marital property to each party. This bonus clearly accrued during the parties’ marriage and Dr. Tortorich fails to cite any evidence to the contrary. A bonus accrued during the marriage is marital property subject to division. Wilson v. Wilson, supra. We find that the chancellor did not abuse her discretion in awarding Mrs. Tortorich one-half of the 1993 bonus.
Affirmed in part; and reversed and remanded in part.
Bullion, S.J., agrees.
Cooper, J., dissents.
Pittman and Rogers, JJ., not participating. | [
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John Mauzy Pittman, Judge.
Gary Dean Samples appeals from his conviction at a jury trial of sexual abuse in the first degree for which he was sentenced to eight years in the Arkansas Department of Correction and fined $2,500.00. Appellant raises numerous points for reversal. We find no error and affirm.
Appellant moved for a directed verdict arguing that the State failed to prove that he was at least 18 years of age, an element of the offense. Ark. Code Ann. § 5-14-108(a)(3). A motion for directed verdict is a challenge to the sufficiency of the evidence, and we review the sufficiency argument prior to a review of any alleged trial errors. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993). In determining the sufficiency of the evidence, we review the proof in the light most favorable to the appellee, considering only that evidence which tends to support the verdict. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992).
In denying appellant’s motion for a directed verdict based on a failure to prove majority age, the court noted that appellant’s physical appearance was circumstantial evidence of his age. There are three schools of thought on the use of physical appearance as proof of age. State In Interest of A.N., 630 A.2d 1183 (N.J. Super. 1993). The first group of jurisdictions holds that physical appearance alone, if brought to the fact finder’s attention, will be enough to prove the defendant’s age. See Weaver v. State, 568 So.2d 309 (Ala. 1989). The second group of jurisdictions requires some evidence other than physical appearance to prove age. See State v. Richey, 298 S.E.2d 879 (W.Va. 1982). The third group of jurisdictions states that physical appearance alone is sufficient proof if the defendant’s appearance obviously indicates an age well above that required to be proven although less obvious cases would require proof in addition to physical appearance. See Jewell v. Commonwealth, 382 S.E.2d 259 (Va. App. 1989). We need not decide whether physical appearance alone is sufficient proof because the State introduced a Crime Laboratory Evidence Submission Form into evidence that stated appellant was born 9/13/58. The appellant did not abstract this exhibit. It was received in evidence without objection and without a request for a limiting instruction. We do not agree that there was no substantial evidence that appellant was at least 18 years of age.
Appellant also contends that there was insufficient evidence to support the conviction because no physical evidence was linked to him and the victim’s testimony was not sufficient to sustain his conviction. A person commits sexual abuse of the first degree, as defined by Ark. Code Ann. § 5-14-108(a)(3) (Repl. 1993), if being 18 years old or older, he engages in sexual contact with a person not his spouse who is less than 14 years old. “Sexual contact” means any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, or buttocks, or anus of a person or the breast of a female. Ark. Code Ann. § 5-14-101(8) (Repl. 1993).
The victim, age 13, testified that during the night of October 26, 1992, she wore a night gown and panties as she slept with her face toward the back of the couch. She stated that appellant, her mother’s boyfriend, uncovered her, came up against her and rubbed his penis against her buttock through her panties. She said he rubbed against her a few minutes and returned several more times doing the same. She went to her mother’s room, awakened her and told her what had occurred. The victim’s mother removed her daughter’s underwear and took her to the hospital for examination. The forensic serologist with the Arkansas Crime Laboratory testified that he identified semen on the underwear.
The victim’s mother testified that on the night of October 26, 1992, appellant wanted to have sex and she refused. Appellant was angry and went to the living room where her daughter was sleeping on the couch. The mother said she was awakened by her crying daughter who said appellant was “bothering” her. They went into the bathroom where she noticed her daughter’s underwear was wet and sticky in the back.
A rape victim’s testimony alone is sufficient to uphold a conviction. Skiver v. State, 37 Ark. App. 146, 826 S.W.2d 309 (1992). Here, however, we also have the testimony of the victim’s mother and physical evidence. There is substantial evidence to uphold the conviction.
Appellant also argues that his Sixth Amendment right to a speedy trial was violated. The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial. ..Arkansas Rule of Criminal Procedure 28.2(a) provides that the time for trial shall commence running “from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody or on bail or lawfully at liberty to answer for the same offense. . ., then the time for trial shall commence running from the date of the arrest.” (Emphasis added) Appellant argues that he was arrested on October 26, 1992. At that time he was patted down, handcuffed, placed in a police vehicle, taken to the police station, and Mirandized by police officers. When interrogation was attempted, appellant invoked his right to counsel. The questioning was terminated, and appellant was released without being charged, required to post bail or given a court date.
We need not decide whether appellant was “arrested” for purposes of the speedy trial clause. Under Rule 28.2(a) appellant was not held in custody, did not post bail, was not charged, and was not released with instructions to return for a court date or to otherwise answer for the offense. Therefore, we do not find that appellant’s right to a speedy trial was violated because he was charged on March 9, 1993, arrested on March 11, 1993, and tried on December 8, 1993.
Appellant’s next arguments concern two jurors whom he asserts should have been excused for cause based on actual or implied bias. He contends that these jurors would favor the prosecution. One juror’s daughter worked in the hot check division of the prosecutor’s office. Another juror’s two sons were deputy prosecutors in Louisiana. Both jurors testified that there was nothing about these relationships that would cause them to favor the prosecution. Jurors are presumed unbiased and the burden of proving bias is on the party challenging the juror. Wilburn v. State, 292 Ark. 416, 730 S.W.2d 491 (1987). Whether a juror is impartial is a decision within the trial court’s discretion, and his determination is not reversed on appeal absent a manifest abuse of discretion. McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985). We find no abuse of discretion. Having found no error, we need not address appellant’s argument that he was forced to accept the second juror because he used his last peremptory challenge on the first juror who was not excused for cause.
Appellant’s next argument is the court erred in admitting the victim’s underwear into evidence because a break in the chain of custody was established. The victim’s mother stated that she removed the underwear from her daughter, took them to the hospital, and there Cpl. John Serrette put them in a plastic bag. Detective Davis testified that on October 26, he received the underwear from the examining physician at the hospital, Dr. Sandra Young. He later placed them in an evidence locker. Corporal Serrette said that he completed the evidence tag and that the sealed container holding the evidence remained sealed until it was sent to the Crime Lab. Detective Davis said that Sgt. Alan Bradley removed the evidence from the locker and that Davis sent the evidence to the Crime Lab on October 26. Appellant argues that there is a gap in the chain of custody from Dr. Young to Cpl. John Serrette and from Sgt. Alan Bradley to Det. David Davis.
To allow introduction of physical evidence, it is not necessary that every moment from the time the evidence comes into possession of a law enforcement agency until it is introduced at trial be accounted for by every person who could have conceivably come into contact with the evidence. Gomez v. State, 305 Ark. 496, 809 S.W.2d 809 (1991). The State must demonstrate only that with a reasonable probability the evidence has not been altered in any significant manner, and it is not necessary that every possibility of tampering be eliminated. Id. It is necessary only that the trial judge be satisfied that the evidence is genuine and, in reasonable probability, has not been tampered with. Id. Here, we cannot conclude that the court abused its discretion in admitting the evidence.
Appellant next argues testimony concerning the victim’s prior “sexual conduct” was admissible under Ark. Code Ann. § 16-42-101 (Repl. 1994), the Rape Shield Statute, and that testimony insufficient to be “sexual conduct” was admissible because the statute is inapplicable. The Rape Shield Statute is designed to protect the victim from unnecessary humiliation where the conduct is irrelevant. Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993). Generally, the statute excludes evidence of the victim’s prior “sexual conduct,” i.e. deviate sexual activity, sexual contact or sexual intercourse as defined by Ark. Code Ann. § 5-14-101 (Repl. 1993). Ark. Code Ann. § 16-42-101 (a) (Repl. 1994). There was testimony from the pretrial hearing that the victim thought she might be pregnant, that the victim hung out at the skating rink where she hugged and kissed boys, and that boys were outside the victim’s bedroom window. Appellant sought to admit this testimony that he deemed was not “sexual conduct” protected by the Rape Shield Statute. Slater v. State, 310 Ark. 73, 832 S.W.2d 846 (1992). The court ruled that this testimony was irrelevant and inadmissible, and we cannot say that the court abused its discretion.
There was also evidence to which the Rape Shield Statute applied. When the victim asserts that allegations of prior sexual conduct against the defendant or any other person are true or does not deny making the allegations, the evidence is excluded under the statute. Ark. Code Ann. § 16-42-101(b). The victim did not deny that she had made sexual allegations against her step-grandfather. She further described what occurred in the encounter with her step-grandfather. The trial court is vested with a great deal of discretion in ruling whether prior sexual conduct of the victim is relevant, and we do not overturn its decision unless it was clearly erroneous. Gaines v. State, supra. The court’s decision to exclude from the evidence the victim’s allegations against her step-grandfather was not clearly erroneous.
Appellant’s final argument concerns the State’s rebuttal closing argument during which the appellant contends the prosecutor commented on the defense’s failure to call Dr. Young or Detective Davis to testify even though they had been subpoenaed. Appellant argues these comments impermissibly appeared to shift the burden to appellant to prove his innocence. However, appellant failed to object on this basis below. Clark v. State, 26 Ark. App. 268, 764 S.W.2d 458 (1989). Appellant objected on the basis that failure of a subpoenaed witness to testify was not evidence. We note that appellant stated in his closing argument that the State failed to call Dr. Young and Detective Davis and the State’s comment on rebuttal was in response thereto.
Appellant also argues that during the State’s closing argument the State impermissibly referred to him as a “sexual deviate,” a “pervert,” and stated that, “he’s taking pictures of this community’s children.” There was testimony that appellant had a photographic studio and took pictures of children. A prosecutor is allowed to argue any inference reasonably and legitimately deducible from the evidence. Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). Moreover, the trial court has wide discretion in controlling the arguments of counsel. Yedrysek v. State, 293 Ark. 541, 739 S.W.2d 672 (1987). We find no abuse of discretion.
Finding no error, we affirm appellant’s conviction.
Affirmed.
Cooper, J., concurs.
Mayfield, J., dissents. | [
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] |
Melvin Mayfield, Judge.
This is an appeal from a judgment entered on a jury verdict against the appellant Cathy Lewis and in favor of the appellees. The lawsuit was filed as a result of an accident involving three vehicles. Although the cause of action is a tort, the appeal is in this court because it does not present “a question” about the law of torts as required by Arkansas Supreme Court and Court of Appeals Rule l-2(a)(16). The only issues presented involve questions about the admissibility of evidence.
Appellant’s first point on appeal states that “the trial court made a reversible error in admitting the out-of-court statement of Earl Medley into evidence as an adoptive admission.”
The accident occurred in September 1991, and the case was tried in August of 1993. At the time of the accident the appellant was driving one of the vehicles, and her husband, Earl Medley, was a passenger in that vehicle. The appellee Rebecca Guban-ski was driving another vehicle, and the suit was filed by her against the appellant and the driver and the owner of the third vehicle. The jury found for Gubanski against the appellant but not against the driver or owner of the third vehicle. At the time of the trial the appellant and her husband were divorced, and he was living in another state and was not present at the trial. The appellees, however, offered the testimony of John Goodsell, a truck driver who was present at the scene of the accident. They sought to elicit from Goodsell testimony that shortly after the accident he talked with Earl Medley in the appellant’s presence, and that Medley said the accident was the appellant’s fault. This testimony was offered as an adoptive admission under Arkansas Rule of Evidence 801(d)(2)(ii).
The court heard Goodsell’s testimony in chambers to determine if a sufficient foundation had been laid. Goodsell testified:
After the accident we parked [at a] wide place and came back down to where it was all at. I walked around and talked to people after the accident. I talked to Ms. Lewis’ husband. When I had the conversation with him Ms. Lewis was standing there. We were all standing there just at the Jeep, all together there. The tone or loudness of the conversation in my opinion Ms. Lewis would’ve heard what was said. He said she was nervous and [he] told her to go ahead and that she had all kind of room to make it and that it was her fault when it was all over with. Ms. Lewis didn’t say nothing.
I don’t know whether or not this lady heard the conversation. If she didn’t, she needs a hearing aid.
The trial court ruled that a sufficient foundation had been laid and allowed this testimony. We do not think the court erred in this ruling. Rule 801(d)(2)(h) provides that a statement offered against the party “of which he has manifested his adoption or belief in its truth” is not hearsay. Such a statement is called “an adoptive admission.” See Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990). In Wilson v. City of Pine Bluff, 6 Ark. App. 286, 641 S.W.2d 33 (1982), it was pointed out that prior to the adoption of our Rules of Evidence we recognized what the Rules now refer to as an adoptive admission as a “tacit admission” and allowed it in evidence as an exception to the hearsay rule. The admissibility of such evidence is tested by whether a reasonable person, under the circumstances, would have been expected to deny the statements if they were in fact untrue. Morris said a trial court must find that sufficient foundational facts have been introduced so the jury can reasonably infer that the accused heard and understood the statement and the statement was such that, under the circumstances, if the accused did not concur in the statement he would normally respond. Once such a foundation has been established, the question is left to the jury to determine whether the accused acquiesced in the statement. 302 Ark. at 537, 792 S.W.2d at 291.
Preliminary questions concerning the admissibility of evidence, such as whether a proper foundation has been laid, are determined by the trial court. See Ark. R. Evid. 104(a). The trial court’s determination in this regard is reversed only if there is an abuse of discretion. Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987). Under the circumstances in the instant case we think the trial court could have properly found that an adequate foundation for admissibility had been laid. The evidence was such that the jury could reasonably infer that the appellant heard Medley’s statement, and the jury could find that she acquiesced in it.
The appellant also argues that the statement of Medley should have been excluded under Ark. R. Evid. 403 which provides that evidence, although relevant, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or other considerations mentioned in the rale. The only consideration argued by appellant here is unfair prejudice. In Weger v. State, 315 Ark. 555, 559, 869 S.W.2d 688, 690 (1994), our supreme court said, “We have repeatedly held that the balancing of probative value against prejudice is a matter left to the sound discretion of the trial judge, and a trial judge’s ruling on this issue will not be disturbed absent a showing of manifest abuse.” We cannot say the trial judge abused his discretion in allowing this evidence in this case, especially in light of our holding on the next point argued by the appellant.
Appellant’s next point is that “the trial court committed reversible error in refusing to admit, as rebuttal evidence, the statement given by Earl Medley to the insurance investigator....”
The appellees’ first response to this point is that there was not an adequate proffer of this statement. We do not agree. Arkansas Rules of Evidence 103(a)(2) provides that no offer of proof is required if the substance of the evidence sought to be introduced is “apparent from the context within which questions were asked.” See also Billett v. State, 317 Ark. 346, 348, 877 S.W.2d 913, 914 (1994) (“[P]roffer is not necessary when the substance of the offer is apparent.”).
Here, the appellant’s abstract shows that after an attorney for Mr. Wyatt (the driver of the third vehicle), who is one of the appellees, had elicited from the witness John Goodsell his testimony of what the appellant’s husband said in the appellant’s presence about the automobile accident being her fault, the appellant testified in rebuttal that her husband “did not say anything remotely resembling” what Goodsell testified her husband said. Appellant then stated, “He provided a statement to the investigators for Mr. Wyatt within a few days after the accident.” At this point Mr. Wyatt’s attorney objected and appellant’s attorney told the trial judge that the statement referred to was taken by Mr. Wyatt’s insurance company and “is inconsistent to what Mr. Goodsell has said here.” Appellant’s attorney then explained that he was being put in a position where the jury was going to be able to rely on Goodsell’s testimony about what appellant’s husband said, and “yet, I am not allowed to even bring up the fact that he [meaning the appellant’s husband] obviously had a prior inconsistent to that.”
The court then ruled on the objection by Mr. Wyatt’s attorney by stating that the appellant could deny that the statement (which Goodsell said appellant’s husband had said) was ever made in the appellant’s presence, “but to allow her to start testifying to what a non-party said in a statement is improper.”
As we have pointed out, previous to this ruling the trial judge had heard testimony in chambers and had ruled that Mr. Goodsell’s testimony about what appellant’s husband had said in the appellant’s presence would be admissible under Arkansas Evidence Rule 801(d)(2) as “a statement in which one party has manifested a belief in its truth.” Therefore, taking into consideration all the above circumstances, we cannot agree that the substance of the evidence that appellant’s attorney wanted to introduce was not known to the trial judge. He clearly knew that the appellant was going to testify about the statement that her husband had given to the insurance investigator, and her attorney told the judge that it was inconsistent with what Goodsell had testified the husband had said shortly after the accident.
We now turn to a discussion of the trial court’s ruling that to allow appellant “to start testifying about what a non-party said in a statement is improper.” We first call attention to the fact that the Publisher’s Notes, following Ark. R. Evid. 101, state that the Arkansas Rules of Evidence started with the adoption of the Uniform Rules of Evidence at an invalid session of the legislature and were then adopted under the statutory and rule-making authority of the Arkansas Supreme Court. See Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986). Previous to Ricarte, the court said in Rhodes v. State, 276 Ark. 203, 210, 634 S.W.2d 107, 111 (1982), that “we desire to maintain an interpretation of the Uniform Rules that is reasonably consistent with other states as well as with the Federal Rules of Evidence.”
Therefore, we start with a comparison of Arkansas Rule of Evidence 801(d)(2) and Federal Rule of Evidence 801(d)(2). Arkansas Rule 801(d)(2) provides that a statement is not hearsay if:
The statement is offered against a party and is (i) his own statement, in either his individual or a representative capacity, (ii) a statement of which he has manifested his adoption or belief in its truth, (iii) a statement by a person authorized by him to make a statement concerning the subject, (iv) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship, or (v) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.
And Federal Rule 801(d)(2) provides that a statement is not hearsay if:
The statement is offered against a party and is (A) his own statement, in either his individual or a representative capacity or (B) a statement of which he has manifested his adoption or belief in its truth, or (C) a statement by a person authorized by him to make a statement concerning the subject, or (D) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship, or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.
It is obvious that the only difference between these two rules is that the Arkansas rule uses (i), (ii), (iii), (iv), and (v) to designate its categorical references, and the Federal rule uses (A), (B), (C), (D), and (E).
Next, Arkansas Rule of Evidence 806 provides:
If a hearsay statement, or a statement defined in Rule 801 [d] (2) (iii), (iv), or (v), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with his hearsay statement, is not subject to any requirement that he may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine him on the statement as if under cross-examination.
And the Federal Rule of Evidence 806 provides:
When a hearsay statement, or a statement defined in Rule 801(d)(2), (C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with his hearsay state ment, is not subject to any requirement that he may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement had been admitted calls the declarant as a witness, the party is entitled to examine him on the statement as if under cross-examination.
Again, it is obvious that the only difference between these two rules is the method used to designate categorical references.
Now it is true that the Arkansas Rule 806 provides that “If a hearsay statement or a statement defined in Rule 801[d](2) (iii), (iv), or (v), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness.” This, of course, leaves out [d](2)(i) (a party’s own statement, in either his individual or representative capacity) and [d](2)(ii) (a statement of which he has manifested his adoption or belief in its truth). We are here concerned with (ii), the “adoptive admission” provision, which would seem to be excluded from the provisions of Rule 806 which permit an attack on the declarant’s credibility.
Let us examine, however, what that would mean in the instant case. It would mean that a bystander could testify that the appellant’s husband made a statement that appellant was at fault, and that the appellant did not deny the statement or object to it; however, if her husband had made a statement to someone else that he did not say what the bystander said the husband said — the appellant could not show that her husband had made the inconsistent statement. In other words, she is tarred with the “hearsay” statement of what her husband said because the rules of evidence will not let her use a “hearsay” statement of what her husband said in her favor to rebut the one used against her. Surely this is not what is contemplated when Arkansas and Federal Evidence Rule 102 both provide that: “These rules shall be constructed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence, to the end that the truth may be ascertained and proceedings justly determined.”
A close examination of the matter reveals that the above scenario is not what was contemplated by the rules. In the trea tise on evidence, 2 McCormick on Evidence § 324.2 at 370-71 (1992), there is a discussion under the heading of “Impeachment of Hearsay Declarant.” Federal Rule 806 is quoted — and we need to notice that the Rule begins — “When a hearsay statement, or a statement defined in Rule 801(d)(2), (C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked,...” Also we need to remember that the categories set out in Rule 801(d)(2) are defined as “not hearsay.” However, the inclusive language at the beginning of Rule 806 means that rule would also apply to a hearsay statement even if it was not a statement defined in Rule 801(d)(2). The discussion in McCormick begins as follows: “When a hearsay statement is introduced, often the declarant does not testify. It is, however, ultimately the declar-ant’s credibility that determines the value that should be accorded to the statement. How should that credibility be attacked, or where appropriate, supported?” Federal Rule 806 is then quoted, and the answer to the above question is stated: “The rule treats the hearsay declarant as effectively as a witness for impeachment purposes.”
The discussion in McCormick then continues with this statement: “The rule covers both statements admitted under hearsay exceptions and admissions, but does not apply to statements that are nonhearsay and not admitted for their truth.” The first half of that statement is footnoted as follows:
Literally the rule appears to cover only representative admissions under subparagraphs (C) and (D) of Rule 801(d)(2) and co-conspirator statements under subpara-graph (E). However, the legislative history makes clear that there was no intention to prohibit impeachment of declar-ants making admissions under subparagraphs (A) and (B). The Senate Judiciary Committee believed that it was “unnecessary to include[] statements contained in rule 801(d)(2)(A) and (B) — the statement by the party-opponent himself or the statement of which he has manifested his adoption — because the credibility of the party opponent is always subject to attack on his credibility.” Senate Comm, on Judiciary, S.Rep. No. 1277, 93d Cong., 2d Sess. 22 n 1 (1974), reprinted in 1974 U.S. Code Cong. & Admin. News 7051, 7068 n. 1.
We need to note again at this point that 801(d)(2)(A) and (B) read the same as Arkansas Rule of Evidence 801(d)(i) and (ii). Thus, under the intent of Congress, and according to McCormick, these two categories — (A) and (B) in the Federal Rule and (i) and (ii) in the Arkansas Rule — are not meant to be exceptions to the situation under Rule 806 which allows “the credibility of the declarant” to be attacked. This would solve the question involved in this case because the application of Rule 806 allows — as the rule states and McCormick notes — that “the credibility of the declarant may be attacked, and if attacked it may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness.” So after John Goodsell testified to what the appellant’s husband said — if this makes her the declarant of that statement because she adopted it — the rule would allow her to support her credibility by putting into evidence the statement made by her husband to the insurance investigator which is inconsistent with what Goodsell testified the husband said but which is consistent with what the appellant testified the husband said. However, a more comprehensive answer to the issue now under discussion is found in McCormick’s statement, supra, that “the rule treats the hearsay declarant as effectively as a witness for impeachment purposes.”
The case of United States v. Price, 792 F.2d 994 (11th Cir. 1986), cited in a footnote to the above discussion in McCormick, supports McCormick’s statement. In that case, the appellant Price was convicted of illegal distribution of a controlled substance. He had delivered hashish oil to Jimmy Carbone, a confidential informant, to be delivered to Carbone’s narcotics connections for money. Carbone died before the trial, but tape recordings of telephone conversations between Price and Carbone were introduced into evidence. Price’s conviction was affirmed and that part of the opinion applicable to the instant case is as follows:
The defense argues that, according to United States v. Lemonakis, 485 F.2d 941 (D.C. Cir. 1973), cert. denied, 415 U.S. 989, 94 S.Ct. 1586, 39 L.Ed.2d 885 (1974), if Price adopted the statements of Carbone such that they are admitted as adoptive admissions, then Carbone may be impeached under FRE 806. In the Lemonakis case, a confidential informer similarly died before trial, and the taped recordings between him and the defendants were offered, as here, to put into context the statements of the defendant. The statements were also offered as adoptive admissions by the defendant of the statements made by the confidential informant. As to those statements, the court said: “(t)he only incriminating statements of the informant to be taken as trae are those which, in the judgment of the jury, were adopted by appellant, and while that does make the informant’s statements hearsay evidence, their adoption by appellant brings them within a long-recognized hearsay exception.” Id. at 949. Though this case is not controlling, it is persuasive for the proposition that the utterer of words which have been adopted as an admission by the defendant, is subject to impeachment under FRE 806.
In the present case however, the statements of Car-bone were not admitted as adoptive admissions of the defendant Price. The single purpose of admitting the Carbone statements was to make understandable to the jury the statements made by Price himself. The statements are not hearsay, as they were not offered for the truth of the matter asserted, and were not what is defined as not hearsay within the meaning of FRE 801(d)(2)(C), (D) or (E). Therefore, the appellant’s Sixth Amendment right of confrontation and to present a defense was not violated by the introduction of the tapes into evidence.
Id. at 997 (emphasis added).
In regard to the instant case, the pivotal language in the Price opinion states that the Lemonakis case is “persuasive for the proposition that the utterer of words which have been adopted as an admission by the defendant, is subject to impeachment under FRE 806.” That, of course, is the issue now under discussion. And while it may be arguable that this language in Price is dictum, it is nevertheless instructive on the point here involved.
Without going too far astray, the question naturally comes to mind as to why the statements of Carbone, which the appellate court in Price said were not admitted as adoptive statements, would not be subject to impeachment even though they were not offered for the truth of the matter asserted. The answer given in 3 Saltzburg, Martin and Capra, Federal Rules of Evidence Manual Rule 806, at 1674 (6th ed. 1994), is as follows:
If a hearsay statement is introduced into evidence because it qualifies as an exception to the hearsay rule, it is being introduced for its truth. This makes the credibility of the hearsay declarant important. Thus, Rule 806 provides that the credibility of the declarant can be attacked and supported just as if the declarant is on the stand testifying. In other words, the ways in which a witness can be impeached and rehabilitated are also the ways in which a hearsay declarant can be impeached and rehabilitated.
If a declarant’s statement is not being offered for its truth, then it is not hearsay, and impeachment of the declar-ant is not permitted under Rule 806. This makes sense, because if the statement is not being offered for its truth, then there is no concern about the credibility of the declar-ant, and there is no need for evidence on that subject.
Of course, there is no question here as to the purpose of the introduction by the appellees of Goodsell’s testimony about the statement that he said the appellant’s husband made regarding the accident being the appellant’s fault. It was obviously introduced for the truth of the statement made by the husband. It was offered and allowed as an adoptive admission of the appellant. As we have already noted, before the adoption of our Rules of Evidence we recognized that a “tacit admission” was admitted for the truth of the matter asserted as an exception to the hearsay rule. Wilson v. City of Pine Bluff, supra. And now, under our Evidence Rule 801(d)(2)(h), this statement is admitted for the truth of the matter asserted under the rule which provides that it is not hearsay. Therefore, it seems clear that, as the opinion in Price states, “the utterer” of words which have been adopted as an admission by the [appellant here] is subject to impeachment under Rule 806. See also the “Notes of Advisory Committee on Proposed Rules” following Fed. R. Evid. 806 (West Publishing Company) which state:
The declarant of a hearsay statement which is admitted in evidence is in effect a witness. His credibility should in fairness be subject to impeachment and support as though he had in fact testified.
Compare 4 Weinstein and Berger, Weinstein's Evidence § 806[0l], at 806-6 (1994) where it is stated:
Rule 806 proceeds on the theory that triers of fact will be most likely to reach a just determination if all pertinent evidence is made available to them. Confronted with a choice of limiting the impeachment of declarants in a variety of situations, the Advisory Committee chose to eliminate all foundation requirements, stating that “[t]he declar-ant of a hearsay statement which is admitted in evidence is in effect a witness. His credibility should in fairness be subject to impeachment and support as though he had in fact testified.”
In United States v. Moody, 903 F.2d 321 (5th Cir. 1990), the appellant Moody was charged and convicted of mail and wire fraud as a result of using his influence to siphon, for his personal benefit, a large sum of money from a charitable trust. His conviction was reversed because the trial court would not allow him to introduce evidence designed to impeach the reputations for veracity of two co-conspirators who had “fled the jurisdiction and remained at large during the trial” but who had effectively “testified” by means of hearsay declarations. The appellate court said the trial court “harbored the misconception, reinforced by the government, that hearsay declarants cannot be impeached if they fail to testify at trial.” The appellate court said “this belief is squarely contradicted by Fed. R. Evid. 806” and concluded by saying that “a hearsay declarant is deemed to be a witness whose credibility is subject, in fairness, to impeachment.” (Emphasis added.) Id. at 328. The case of United States v. Graham, 858 F.2d 986 (5th Cir. 1988) cert. denied, 489 U.S. 963, is cited in support of this statement. We should note that we think the reference in Moody to “hearsay declarant” simply means a witness who gives evidence that is hearsay but which is admissible under some exception to the hearsay rule. In Moody that exception came under Federal Rule of Evidence 801(d)(2)(E) which pertains to a statement made by a co-conspirator.
So we are told by the notes of the Advisory Committee on the proposed Federal Rules of Evidence that the declarant of the hearsay statement “should in fairness be subject to impeachment.” The commentary in Weinstein’s Evidence and the cases of United States v. Moody and United States v. Graham, supra, agree. In the case now before us, the declarant of the hearsay statement was the appellant’s husband; therefore, in fairness, the evidence which would show that he had made a statement that was inconsistent with the one Goodsell said he made should have been admitted.
Moreover, in United States v. Wuagneux, 683 F.2d 1342 (11th Cir. 1982), cert. denied, 464 U.S. 814, the appellant was convicted on several charges, one of which was tax evasion. At trial he wanted to introduce a statement, allegedly made by his accountant to another accountant, that the failure of appellant to report income from some leases was the accountant’s fault. However, the accountant who made the statement was under grand jury investigation and claimed his privilege against self-incrimination to any questions about his work for the appellant. Accordingly he was declared unavailable and the appellant introduced his statement through the other accountant under Fed. R. Evid. 804(b)(3) (statement against interest; declarant unavailable). On rebuttal the government put an IRS agent on the stand, and he testified that the appellant’s accountant had told the agent that before the tax returns in question were filed the appellant had disavowed any interest in the leases in question. As to the appellant’s argument that this was error, the appellate court said this testimony was “plainly admissible, as an inconsistent statement of a declar-ant, to impeach [the credibility of the appellant’s accountant] under Federal Rule of Evidence 806.” Id. at 1357.
And in State v. Kline, 464 N.E.2d 159 (Ohio App. 1983), the Wuagneux case was said to have been persuasive in the interpretation of an Ohio Rule of Evidence which was said to be identical to Fed. R. Evid. 806. In Kline the appellant was convicted of felonious assault upon Doug Emmons who was unavailable as a witness at the time of trial. A statement by Emmons that the appellant “tried to kill me — call the cops,” made as he wrested a gun from the appellant in a crowded bar, was testified to by Kelly Taylor who was in the bar at the time. Her testimony was allowed under Ohio Rule of Evidence 803(2) (excited utterance). The appellate court said this testimony was properly admitted as an exception to he hearsay rule; however, it said the trial court erred in not allowing in evidence written statements given by Emmons to the police in which he said the appellant “pulled a gun on me. I took it away, and the cops came.” In its opinion the court said the subsequent written statements, by omitting a material fact, contradicted the prior excited utterance to which Taylor testified. The court concluded as follows:
Accordingly, the trial court erred in excluding Emmons’ written statements as “hearsay” and in not allowing cross-examination by defense counsel into those statements. Inasmuch as the trial court received in evidence Emmons’ hearsay statement through Taylor’s testimony, it committed error prejudicial to appellant by excluding Emmons’ inconsistent written statements offered to impeach him. Reversal is therefore required. Appellant’s first assignment of error is well-taken.
Id. at 165.
In summary, we are convinced, from our study of the material which we have discussed, that as applied to the facts and circumstances of this case Ark. R. Evid. 806 allows the appellant to put into evidence the inconsistent statement that she said her husband gave to the insurance investigator. Although no case has been found which has specifically adjudicated the issue either way, the language in the Price case, supra, is certainly supportive of our view. In addition, from the other authority we have cited, we think it is clear that the language in Rule 806 does not limit its application to attacking or supporting only the statements defined as not hearsay in Rule 801(d)(2). To the contrary, the Rule 806 phrase “a hearsay statement or a statement defined in Rule 801(d)(2)(iii), (iv), or (v)” has been held to include excited utterances and statements against interest, each of which is a so-called hearsay statement that is not mentioned in Rule 801(d)(2) (iii), (iv), or (v). It is also clear that the word “declarant” as used in Rule 806 is “deemed to be a witness whose credibility is subject, in fairness, to impeachment.” Obviously, in this case, this would be the appellant’s husband. However, Rule 806 specifically states that a declarant’s credibility may be attacked or supported', therefore, even if the declarant here is the appellant, she should be allowed under Rule 806 to support her credibility by putting into evidence the statement made by her husband to the insurance investigator as that statement was consistent with her own testimony.
Reversed and remanded.
Bullion and Digby, Special Judges, agree.
Cooper, J., concurs.
Jennings, C.J., and Robbins, J„ dissent.
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John E. Jennings, Chief Judge.
Eva Lynette Swain filed a petition in Pulaski County Probate Court to adopt her infant niece, BLS. After a hearing, the probate judge declined to grant the adoption and Ms. Swain appeals. She contends that the probate judge erred in determining that the adoption was not in the best interest of the child. We agree and reverse and remand.
At the time of the hearing Ms. Swain was twenty-two years old. The child was born on June 6, 1993, in Little Rock and shortly after birth was left with Ms. Swain to care for. The child’s mother is Zeneta Watson and her father is Clyde Swain, appellant’s brother. Both Ms. Watson and Mr. Swain filed consents to the adoption. Ms. Swain has never been married. She is five feet nine inches tall and weighs approximately 350 pounds. She has asthma which prevents her from being able to work and has been declared totally and permanently disabled for social security purposes. Her income consists of social security benefits, AFDC benefits, and food stamps. She is a high school graduate and indicated a desire to enroll in a vo-tech program to become a medical assistant sometime in the future. She is a member of Victory Baptist Church in North Little Rock.
A home evaluation done by the Pulaski County Children and Family Services described Ms. Swain’s seven-room apartment as well kept and comfortably furnished. The social worker described in detail Ms. Swain’s excellent care of the child and recommended that the child be placed with Ms. Swain.
At the hearing the social worker testified that Ms. Swain had the facilities and resources to provide for the care of the child and that it was in the child’s best interest that she be adopted by Ms. Swain. Ms. Swain also testified that she was financially able to care for the child and that she wanted to adopt her because she loved her.
The trial court found that the proposed adoption was not in the child’s best interest. This was the appropriate standard in the probate court. See Ark. Code Ann. § 9-9-214(c) (Repl. 1993). In making that finding the trial court relied on three factors: (1) that Mr. Swain had never formally established paternity, (2) that Ms. Swain was unmarried, and (3) that Ms. Swain could not support the child.
On appeal we review probate proceedings de novo and do not reverse the trial court’s decision regarding the best interest of the child to be adopted unless it is clearly against the preponderance of the evidence, giving due regard to the opportunity and superior position of the trial court to judge the credibility of witnesses. In re Perkins/Pollnow, 300 Ark. 390, 779 S.W.2d 531 (¡1989); In re BAB, 40 Ark. App. 86, 842 S.W.2d 68 (1992).
In the case at bar, the probate judge herself stated that Mr. Swain’s failure to formally establish paternity was not a major factor to be considered. We agree. The second factor considered by the trial court was that Ms. Swain was unmarried, but Ark. Code Ann. § 9-9-204 (Repl. 1993) specifically provides that an unmarried adult may adopt a child.
It is evident that the primary reason the petition for adoption was denied was the fact that appellant was on social security disability and drawing AFDC benefits. It has been held that the mere fact that a parent is dependent on AFDC benefits will not provide a basis for a change in custody. Tiggelaar v. Tiggelaar, 433 N.W.2d 145 (Minn. Ct. App. 1988). The record shows that Ms. Swain receives a total of $527.00 monthly in social security benefits and AFDC benefits and that her rent and utilities total $197.00 monthly. We think the trial court’s finding that Ms. Swain was unable to support the child is clearly against a preponderance of the evidence.
The case is reversed and remanded to the probate court for the entry of a decree of adoption.
Reversed and Remanded.
Pittman, J., and Bullion, S.J., agree. | [
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John B. Robbins, Judge.
Appellant Frieda Jean Waggle was convicted by a jury of being an accomplice to aggravated robbery and theft of property. She was sentenced to ten years for the aggravated robbery conviction and three years for the theft of property conviction, with the sentences to run consecutively for a total of thirteen years in the Arkansas Department of Correction. Ms. Waggle now appeals, arguing that the jury should have been instructed on the lesser included offense of robbery. In addition, she contends that the trial court erroneously imposed consecutive, rather than concurrent, sentences. Finally, Ms. Waggle argues that she should have been able to present evidence of specific instances of bad conduct of her accomplice in order to explain her delay in reporting the robbery to the police and to support her affirmative defense of duress. We affirm Ms. Waggle’s conviction for theft of property, but reverse and remand her aggravated robbery conviction pursuant to our finding that the trial court erroneously failed to instruct the jury on the lesser included offense of robbery.
Janice Bridges, owner of Larry’s One Stop in Searcy, testified that her convenience store was robbed on the evening of November 28, 1993. She stated that, on that night, Ms. Waggle entered the store at about 7:00 p.m. and bought some candy. Ms. Bridges testified that, at that time, the store was very busy. She further testified that, fifteen minutes later, Ms. Waggle again entered the store and bought candy. At this time there were no customers in the store, and when Ms. Waggle exited a man walked in with a gun and demanded money. The man left the store with $525.00 in cash which was the property of Larry’s One Stop.
On January 3, 1994, Detective David Copen of the White County Police Department received a call from Officer Sherman Malcomb of the Cabot Police Department. Officer Malcomb informed Detective Copen that Ms. Waggle had called and wished to speak with him. Detective Copen and Officer Bobby Hale then proceeded to Cabot and conducted an interview with Ms. Waggle after informing her of her rights. Ms. Waggle indicated that she was willing to share information about the November 28, 1993, robbery and gave the following statement:
I’ve been advised of my rights, and I understand what my rights are. I do not want a lawyer, and I give the following statement of my own free will. About three or four weeks ago, my boyfriend, Walter Moles, and I were driving home from Searcy. We took the old highway from Searcy to Beebe. We drove past the store just outside of Searcy. I was driving my ’84 Pontiac Bonneville. Walter told me to pull into the store. I don’t remember the name of the store, but it had a fire station next to it. Walter told me to go into the store and see how many people were inside. I know that there were two ladies in there working, and there may have been one customer. I went out and told Walter what I had seen. Then, Walter told me to wait in the car. Walter went inside and in a few minutes he came running out. He had money in one hand and his small, black pistol in the other. He was yelling at me to drive. We drove to McRae, and then we took the freeway to Searcy. We went into Wal-Mart. Then he went to his parents’ house in Searcy, and he gave them the money because he owed them some. I helped Walter to do the robbery because I am afraid of him. This statement is true and correct as written for me by Lieutenant B. A. Hale.
Ms. Waggle testified at her trial, and her testimony was essentially the same as the statement she gave to the police. However, she asserted that she did not know why her boyfriend wanted her to count the customers in the store on the night in question and that, although she accompanied him when he had purchased a handgun on a previous occasion, he had told her he had thrown it in a creek prior to the robbery. Ms. Waggle stated that she did not inform anyone of the robbery because her boyfriend told her that, if she did, he would kill her and her kids. She further stated that, during the five weeks between the robbery and the time she reported it to the police, her boyfriend restrained her in a house that was seventeen miles from a telephone and he would not let her drive her own car. It was not until her boyfriend got into an argument with her and intentionally wrecked her car that Ms. Waggle made contact with the police and implicated him in the robbery.
For reversal, Ms. Waggle first argues that the jury should have been instructed on the lesser included offense of robbery. Robbery is defined by Ark. Code Ann. § 5-12-102 (Repl. 1993) and states that a person commits this offense if, with the purpose of committing a theft, he “employs or threatens to employ physical force upon another.” Aggravated robbery is defined by Ark. Code Ann. § 5-12-103 (Repl. 1993) and provides that a person commits this offense if he commits robbery while armed with a deadly weapon. Ms. Waggle contends that the jury could have reasonably believed that she aided in the robbery but did not know her boyfriend had a gun when he entered the store, therefore she was only guilty of robbery. She cites Savannah v. State, 7 Ark. App. 161, 645 S.W.2d 694 (1983), a case in which we stated that a trial court is obligated to give a lesser instruction of robbery if there is a rational basis for acquitting the appellant of aggravated robbery and convicting him of the lesser offense of robbery. In Savannah v. State, we held that where the appellant admitted some degree of participation in a robbery, but steadfastly denied that he had any knowledge that his accomplice had a weapon, the lesser included instruction should have been given. Ms. Waggle now urges this court to apply this precedent and find that the trial court erroneously denied her request for the robbery instruction.
We agree that, as in Savannah v. State, there was a rational basis for finding the appellant guilty of only robbery. Ms. Waggle denied having any knowledge that her boyfriend was going to rob the convenience store, and further stated that she was unaware that he possessed a gun. The trier of fact has the right to resolve inconsistencies in the testimony of a witness and may believe or disbelieve any portion of that testimony. See Oller v. Andrews, 233 Ark. 1017, 350 S.W.2d 167 (1961). In the case at bar, the jury was entitled to believe Ms. Waggle’s assertion that she did not know her boyfriend was carrying a gun, while disbelieving her claim that she did not assist in the commission of the robbery. Therefore, the trial court erred in refusing to give an instruction on robbery.
Ms. Waggle next argues that she should not have received consecutive prison sentences because this resulted in her being punished twice for the same crime and because the trial court made this decision after indicating that the decision was being made in light of considerations other than the discretion of the court. We find both bases for this argument to be without merit. Nevertheless, this argument is now moot as a result of our reversal of Ms. Waggle’s conviction for aggravated robbery.
Ms. Waggle’s remaining argument is that she should have been allowed to present evidence of specific instances of her boyfriend’s misconduct. She contends that evidence of his subsequent crimes was relevant to explain her delay in report ing the robbery to the police and to support her affirmative defense of duress. However, Ms. Waggle never indicated what specific crimes or bad acts that her boyfriend allegedly committed. The failure to proffer evidence so that the appellate court can determine whether it was erroneously excluded precludes review of the issue on appeal. See Roe v. State, 310 Ark. 490, 837 S.W.2d 474 (1992). Since Ms. Waggle failed to proffer testimony regarding her boyfriend’s misconduct, we are unable to review this issue on appeal.
Affirmed in part and reversed and remanded in part.
Bullion, S.J., agrees.
Cooper, J., dissents. | [
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Judith Rogers, Judge.
This is an appeal from the Workers’ Compensation Commission’s decision finding that appellant was jointly employed by appellees when he sustained an admittedly compensable injury. The Commission further concluded that appellant was entitled to the maximum statutory rate for partial and total disability benefits based upon his combined wages. On appeal, appellant argues that the Commission erred in combining his wages from both employers to arrive at a weekly compensation rate. We disagree and affirm.
The record reveals that appellant worked simultaneously for the City of Osceola and Recovery Corporation when he sustained an admittedly compensable injury. Both the City of Osceola and Recovery Corporation paid appellant for the same eight-hour shift, one check coming from the City and the other from Recovery Corporation. Appellant filed a claim for benefits contending that he should be entitled to receive two sets of workers’ compensation benefits from his respective employers. The administrative law judge found that appellant was entitled to receive the weekly maximum benefits based upon appellant’s combined wages from both employers. The Commission affirmed the ALJ’s decision. Appellant contends that the Commission erred in combining his wages from both employers to arrive at his average weekly wage. He argues that the Commission should have computed two distinct partial and total disability benefits which he was entitled to receive from each employer, respectively. If we were to accept appellant’s argument, he would not be subjected to the maximum benefit cap in effect in 1990, and consequently he would be receiving $73.20 more each week than the Commission awarded.
Arkansas Code Annotated § 11-9-518 (1987) provides:
(a)(1) Compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of the accident and in no case shall be computed on less than a full-time workweek in the employment.
When a joint employment situation exists, both employers are liable for workmen’s compensation. See Dillaha Fruit Co. v. LaTourrette, 262 Ark. 434, 557 S.W.2d 397 (1977). The issue here involves the computation of an employee’s average weekly wage when he suffers a compensable injury while jointly employed by two employers. This precise issue has never been addressed in Arkansas.
In the case of Marianna School District v. Vanderburg, 16 Ark. App. 271, 700 S.W.2d 381 (1985), the issue involved the proper method for the determination under Ark. Stat. Ann. § 81-1312 (Repl. 1976) of the average weekly wage of an employee who holds two concurrent jobs with the same employer and suffers a compensable injury while performing one job. We held that where the injured worker worked full-time for the same employer, the Commission did not err by combining the wages paid for the two jobs for the purpose of determining the appellee’s weekly compensation rate.
In the case of Hart’s Exxon v. Prater, 268 Ark. 961, 597 S.W.2d 130 (Ark. App. 1980), Joe Prater was injured while working for Hart’s Exxon. He was also employed by the Marianna School District. Mr. Prater filed a claim contending that the compensation rate should have been based upon the combined earnings from his two jobs. The supreme court determined that the Commission was correct in not combining Mr. Prater’s wages because he was injured while working for Hart’s Exxon; that his two jobs were not related nor similar; and that the school district did not pay workers’ compensation premiums to Hart’s Exxon’s insurance carrier.
Also, in the case of Curtis v. Ermert Funeral Home, 4 Ark. App. 274, 630 S.W.2d 57 (1982), the appellant requested that his wages from separate, unrelated jobs with different employers be combined to determine his average weekly wage. We determined that under our statutory definition of “wages” there was no provision for combining wages from concurrent employments when there are different employers.
All of the previous cases that have dealt with Ark. Code Ann. § 11-9-518 are distinguishable from the case at bar because we have never considered a case where a joint employment situation existed. However, we are provided with some guidance in 1C Larson, Workmen’s Compensation Law, § 48.45 which provides:
The normal consequence of joint employment is an award calling for joint and several liability, usually without apportionment. ... Moreover, in a joint liability situation, since the award could be made against either employer or both, an award that runs against only one of the two will be affirmed. An employee who has received full compensation benefits from one employer may not, of course, recover benefits from the other one.
Arkansas Code Annotated § 11-9-519(a) (Repl. 1993) provides:
(a) In case of total disability, there shall be paid to the injured employee during the continuance of the total disability sixty-six and two-thirds percent (66 2/3%) of his average weekly wage.
Also, Ark. Code Ann. § 1 l-9-501(b)(3) provides:
(3) For a disability or death which results from an injury occurring during a calendar year beginning on or after January 1, 1990, the maximum weekly benefit payable shall be seventy percent (70%) of the state average weekly wage.
The Commission found that:
... it would violate public policy for a joint employee who has already received full compensation benefits from one employer to recover a second set of benefits from another employer for the same incident. If the claimant in this case is allowed to collect full benefits from both employers, claimant will be receiving double the benefits. The logical and correct conclusion is that claimant is entitled to receive temporary total disability benefits based upon a combination of his salary and that each employer is jointly and severally liable for compensation to the claimant.
In the case at bar, it was undisputed that appellant was employed by both appellees in the capacity of a joint employee. Contrary to the dissent’s position that appellant was performing two separate jobs, the record indicates that appellant’s position did not change to any degree from the work he had been previously performing to the present time. He was receiving a check each week from both appellees for the same work he had been performing for the last eleven years. In fact, appellant was only working one forty-hour work-week. The dissent also states that it is “undisputed that there were two contracts of hire in force at the time of the accident.” Further, the dissent assumes that both employers and both insurers in this particular case could expect to be liable for compensation. However, the record does not contain any information which indicates the type of employment responsibilities which existed between both employers and appellant, let alone the insurers’ responsibilities for this employee. The only evidence in the record is that appellant was receiving a check from both appellees for the same work week. It does appear that appellant was the only employee on his shift that was receiving two checks for his job.
The Commission concluded that appellant was entitled to “indemnity benefits at the maximum statutory rate for permanent and total disability based upon his combined wages provided that, claimant’s total weekly indemnity benefits shall not exceed the maximum weekly benefits rates set forth in the Act.” After reviewing the record, we cannot say that the Commission erred in combining appellant’s wages to arrive at his average weekly wage. Although our Workers’ Compensation Act is remedial and should be construed liberally in favor of the worker, this does not mean that we should either enlarge or restrict plain provisions of the Act. To allow appellant to receive two full sets of benefits, would defeat provisions of our workers’ compensation law in that it would go beyond the maximum statutory weekly benefits allowed, and it would not encourage workers to return to the work force.
Affirmed.
Cooper, Mayfield and Robbins, JJ., dissent. | [
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John Mauzy Pittman, Judge.
Appellant, George’s Inc., appeals from an Arkansas Board of Review decision awarding unemployment benefits to appellee Jimmy Don Wilson. The Board found that appellee was discharged from his last work for reasons other than misconduct in connection with the work. Appellant argues that the Board’s findings that appellant’s drug and alcohol abuse policy was unreasonable and that appellee’s discharge was for reasons other than misconduct are not supported by substantial evidence. We agree with appellant’s first point, and reverse and remand.
On appeal, the findings of fact of the Board of Review are conclusive if they are supported by substantial evidence. Ark. Code Ann. § ll-10-529(c)(l) (1987); Perdrix-Wang v. Director, 42 Ark. App. 218. 856 S.W.2d 636 (1993). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Id. Our review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id.
Appellee was injured while working on appellant’s sanitation crew. Appellant’s policy required drug testing after a work-related accident that necessitated medical treatment. Appellant’s drug test revealed a positive reading for propoxyhene, phenobarbital and butalbital. The policy states that any injured employee testing positive for “any detectable amounts of illegal drugs” or any employee who reports to work or works under the influence of any controlled or illegal substance, except a drug prescribed by a physician to the employee, will be discharged. Appellee signed a consent agreement at the time of his employment to comply with this policy as a condition of employment.
Appellant’s personnel manager testified that appellee had not shown any impairment on the job and that appellee’s previous drug tests were negative. Appellee was unable to produce a prescription to account for butalbital, and he was discharged solely for testing positive for a controlled substance not prescribed to him. Appellee stated that about five days before the drug test he was in pain and having taken all of his prescription for Darvocet, a friend had given him a sleeping or pain pill. Appellee said that he did not know what he took, although he believed it was “just like” Darvocet. He did not ask what it was and his friend said it was a painkiller. He was also taking Motrin. A nurse employed by appellant said that Darvocet accounted for the showing of propoxyhene. An employee of the drug testing laboratory testified that over-the-counter medications may result in a positive showing of phenobarbital. The laboratory employee said that the lab toxicologist had not told her that butalbital was contained in over-the-counter medications and so she assumed butalbital, a pain killer, was contained in a prescription drug. The lab employee testified that a pain killer could remain in a person’s system up to two weeks. The lab employee stated that none of the positive readings could be attributed to Motrin.
Arkansas Code Annotated § 11-10-514(a)(1) (1987) provides that an individual shall be disqualified from benefits if he is discharged from his last work for misconduct in connection with the work. “Misconduct,” for purposes of unemployment compensation, involves: (1) disregard of the employer’s interest, (2) violation of the employer’s rules, (3) disregard of the standards of behavior which the employer has a right to expect of his employees, and (4) disregard of the employee’s duties and obligations to his employer. A. Tenenbaum Co. v. Director of Labor, 32 Ark. App. 43, 796 S.W.2d 348 (1990); Grace Drilling Co. v. Director, 31 Ark. App. 81, 790 S.W.2d 907 (1990). There is an element of intent associated with a determination of misconduct. Mere good faith errors in judgment or discretion and unsatisfactory conduct are not considered misconduct unless they are of such a degree of recurrence as to manifest culpability, wrongful intent, evil design, or intentional disregard of an employer’s interest. Grace Drilling Co. v. Director, supra, Sadler v. Stiles, 22 Ark. App. 117, 735 S.W.2d 708 (1987); Shipley Baking Co. v. Stiles, 17 Ark. App. 72, 703 S.W.2d 465 (1986). Whether the employee’s acts are willful or merely the result of unsatisfactory conduct or unintentional failure of performance is a fact question for the Board to decide. Arlington Hotel v. Employment Security Division, 3 Ark. App. 281, 625 S.W.2d 551 (1981).
The Board found that the evidence did not establish that appellee intentionally disregarded a “standard of behavior the employer had a right to expect.” Appellee stated that he took the sleeping/pain pill over the weekend while off work. As the Board stated, “misconduct” connected with the work, i.e., whether appellee’s off-duty drug use was a disregard of a standard of behavior his employer had a right to expect, must be determined by applying the principles of Feagin v. Everett, 9 Ark. App. 59, 652 S.W.2d 839 (1983). In Feagin, the court affirmed the Board’s finding that a school teacher’s off-duty involvement with illegal drugs was violative of a standard of behavior her employer had a right to expect. The court stated that the teaching profession requires a higher standard of its practitioners because school teachers serve as role models for their students. In applying the precepts of Feagin to the facts of our case, the Board found that appellant was not entitled to relief, since it had not met her burden of establishing misconduct. The Board also said that appellee took what he thought, albeit incorrectly, was similar to Darvocet (which had been prescribed to him), and that this sleeping/pain pill, received from a friend for which appellee did not have a prescription, was apparently responsible for the butalbital reading. We cannot conclude that the Board’s finding that appellee did not violate a standard of behavior is not supported by substantial evidence.
Although appellee did not intentionally disregard a standard of behavior, misconduct may also be found for an intentional violation of the employer’s rules. Appellee was not discharged for off-duty conduct, but pursuant to the policy requiring a discharge for any employee testing positive for a detectable amount of a controlled substance without a prescription. The Board did not decide whether appellee intentionally violated the appellant’s drug policy because it found that the evidence failed to show that appellant’s drug policy was reasonable as applied to the facts of this case. The Board gave the following reasons for this finding. First, the record is devoid of a description of appellee’s job duties, thus preventing an analysis like that of Grace Drilling Company v. Director of Labor, supra, where we held that an employer’s drug-free policy was reasonable in light of the dangerous nature of the drilling industry. Second, appellant’s stated purpose for its policy, to promote safety and production, is not met by discharging an employee having trace amounts of an illegal drug regardless of “whether the employee is in fact impaired” and by not discharging an employee who is impaired by a prescription drug. Third, there was no showing that the particular drugs being tested for were drugs that would be detrimental to production or safety. Fourth, that appellant could discharge an employee upon finding any detectable amount of illegal drugs but would only discharge for findings of alcohol greater than a .05 level indicating that the employer recognized that a “trace level of any type of foreign substance in the body does not necessarily establish an impaired condition.” Fifth, the Board found it unreasonable that appellant’s policy required a drug test following an on-the-job injury because not all injuries are caused by negligence, such as ones caused by the nature of the work. We cannot conclude that the Board’s finding that the drug policy was not reasonable is supported by substantial evidence.
We address the reasonableness of appellant’s drug policy because a prerequisite to finding misconduct for violation of an employer’s rule is that the rule be reasonable. 81 C.J.S. Social Security and Public Welfare §224 (1977); Pesce v. Board of Review Dep’t of Employment Security, 515 N.E.2d 849 (Ill. App. 1987). The dangerous nature of the employer’s industry or an employee’s job duties, as well as the existence of risk factors, may justify a drug-free policy as reasonable when the policy is implemented to promote safety. Grace Drilling Company v. Director of Labor, supra. Appellee stated that he worked on appellant’s clean-up sanitation crew and his job duties included cleaning machinery. The stated purpose of appellant’s policy is to “provide a safe and productive work environment for all its employees.” Furthermore, an employer is not required to show that the employee is actually impaired in his job performance before he may discharge an employee after a drug test indicates trace amounts of illegal drugs. Id. We find it persuasive that such policies have been upheld in other jurisdictions as reasonable. See Robinson v. Dep’t of Employment Security, 637 N.E.2d 631 (Ill. App. 1994); Singleton v. Unemployment Compensation Board of Review, 558 A.2d 574 (Pa. 1989). In our case, the Board was incorrect to imply that in addition to finding a positive drug test, appellant must also demonstrate that appellee was impaired before appellant’s drug-free policy would be reasonable.
The Board also stated that the purpose of appellant’s drug policy, to provide safety and production, was not promoted by discharging an employee for a trace amount of illegal drugs without any showing of an impaired job performance when under the same policy, a person impaired by prescription drugs would not be discharged. To avoid discharge, appellant’s policy required a person impaired by prescription drugs to report his condition to appellant who then prevented him from working. A person who worked without reporting an impairment by prescription drugs could be discharged. This prevention of impaired employees from working is consistent with promoting safety. However, it was unnecessary for appellant to determine that appellee was impaired in his job performance before discharging appellee because appellee’s test revealed a detectable amount of illegal drugs; i.e., a controlled substance without a prescription. Grace Drilling Company, supra. Illegal drug use brings potential harm to the employer, regardless of the worker’s demonstrated impairment, especially when a worker’s duties involve exposure to machinery.
Moreover, we find persuasive cases from other jurisdictions which have upheld as reasonable drug policies that provide for drug testing following a work-related accident. McAllister v. Board of Review, 635 N.E.2d 596 (Ill. App. 1994); Singleton v. Unemployment Compensation Board of Review, supra.
For the reasons stated herein, we cannot conclude that the Board’s finding that appellant’s drug policy was unreasonable is supported by substantial evidence. We note that negative drug test results were a condition of appellee’s employment to which appellee agreed. See Szostek v. Unemployment Compensation Board of Review, 541 A.2d 48 (Pa. 1988). We hold that appellant’s drug policy is reasonable and remand for the Board to decide whether appellee intentionally or deliberately violated appellant’s drug policy, as that finding must be made by the Board. W.C. Lee Construction v. Stiles, 13 Ark. App. 303, 683 S.W.2d 616 (1985).
Reversed and remanded.
Jennings, C.J., and Mayfield, J., dissent. | [
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George K. Cracraft, Judge.
Thomas Race appeals from a judgment entered in Pope County Circuit Court, contending that the case should be reversed due to the court’s abuse of discretion in the jury selection process. We disagree.
This was an action brought by appellee, National Cashflow Systems, Inc., to collect a debt allegedly owed to them by appellant. The complaint alleged that appellant had entered into an installment sale financing contract with appellee in which appellee agreed to finance appellant’s sales and appellant agreed to guarantee all such financing contracts by repurchasing or replacing any contract in default. It further alleged that a sale made by appellant and financed by appellee was in default, and appellee sought judgment for the indebtedness.
On the day of trial, prior to the selection of the jury, counsel for appellee informed the court that there were five persons on the jury list who had outstanding, delinquent accounts with appellee and that within the last four months appellee had taken action against some of them, one of whom had subsequently filed bankruptcy. The court, at the request of appellee and over appellant’s objection, ordered that those names be removed from the list of potential jurors. The judge announced that he was excusing these prospective jurors because he did not want to subject them to the embarassment of having to admit in open court that they were delinquent debtors, actively pursued by creditors. At the court’s direction, none of the five persons excused were told that their names were removed and they remained seated with the panel. During voir dire, the panel was asked whether any of them were involved with appellee or its representatives. Only one person, who was not one of the five previously excused, answered affirmatively.
Later, outside the presence of the jury, appellant was permitted to make a record of his objection and a representative of appellee testified to those facts regarding the excused jurors as previously recited to the court. Eighteen names were then drawn from the reduced panel and each party was permitted to exercise three peremptory challenges. The jury returned a verdict in favor of appellee.
Arkansas Code Annotated § 16-31-103 (1987) provides that the trial court may excuse any person from serving as a petit juror when, in the opinion of the court, there is any reason why his interests, or those of the public, will be materially injured by his attendance. The exercise of that authority rests within the sound discretion of the trial court, and it may be, and. often is, exercised without affording trial counsel the right to voir dire the juror where there is no deliberate exclusion of a large class of eligible jurors. Collins v. State, 211 Ark. 825, 611 S.W.2d 182 (1981); Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980).
In his sole point for reversal, appellant contends that the trial court erred in excluding the five prospective jurors. Appellant advances several arguments why the court should not have excused jurors on the morning of trial at the request of one litigant over the objection of another, and argues that to do so under these circumstances was an abuse of discretion and prejudicial error warranting reversal. We do not address these arguments because, if there was error in the court’s action, we cannot conclude that it was prejudicial. Appellant has not demonstrated that the court’s action excluded a large class of potential jurors, that the remaining jurors were not representative of the community, or that the jurors selected to try the case were other than fair and impartial.
Prejudice is not presumed simply because error might have occurred. The basic issue we decide is not whether we approve or disapprove of the procedure followed in the jury selection, but whether there was prejudicial error. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984). We find none.
Affirmed.
Corbin, C.J., and Cooper, J., agree. | [
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John E. Jennings, Judge.
Appellant, First Commercial Bank, brought suit against McGaughey Brothers, Inc., and, in the alternative, J.C. McGaughey, individually, on an instrument of guaranty, seeking judgment for $160,000.00. The guaranty agreement was signed by J.C. McGaughey as vice president for the corporation. A jury found no liability on behalf of either the corporation or Mr. McGaughey individually. We conclude that the case must be reversed and remanded.
This litigation stems from the financial problems experienced by the Village Creek and White River Levee District and the Mayberry Drainage District, two eastern Arkansas improvement districts. By 1983 the two districts owed approximately $1,300,000.00 to the Merchants and Planters Bank of Newport. For some time both districts had had trouble making payments of either principal or interest, and for several years the notes were annually renewed with the interest due being added to the amount of the new note.
The districts were merged in 1983 with a view towards annexing additional land in order to have a bond issue to pay for repairs to improvement district property. A subsequent annexa tion attempt failed. Also by 1983, the Federal Deposit Insurance Corporation had required that the directors of Merchants and Planters Bank agree to demand that the loan be paid by the end of that year or else suffer a charge-off. The improvement district was advised that the loan had to be refinanced. Eventually the improvement district through its attorney, Fred Pickens, contacted First Commercial Bank about a loan. At the time, Mr. Pickens was also a member of the board of directors of Merchants and Planters Bank, as well as a member of the advisory board of the appellant bank. In December 1983, appellant agreed to loan the district $1,725,000.00 on condition that the district obtain sufficient individual guaranties to cover the amount of the note.
The district, through its commissioners, then approached various landowners whose farmland was benefited by the levees. McGaughey Brothers, Inc., owned several thousand acres of land which were so benefited.
In late 1983 two improvement district commissioners, William Pratt and John Conner, approached J.C. McGaughey seeking the guaranty of McGaughey Brothers, Inc., for a portion of the debt. At trial, both commissioners testified that Mr. McGaughey told them he did not have approval from his board of directors to sign for the corporation and that he either did not have authority, or doubted his authority, to sign on behalf of the corporation. Nevertheless J.C. McGaughey, as vice president for the corporation, did sign an agreement guarantying the repayment of $160,000.00 of the indebtedness.
At trial Mr. McGaughey admitted signing the guaranty ostensibly on behalf of the corporation, but contended that the commissioners were acting as agents for the bank in obtaining signatures to the guaranty agreement and thus their knowledge of Mr. McGaughey’s statement concerning his lack of authority to bind the corporation should be imputed to First Commercial Bank. The trial court submitted the issue of agency to the jury, and the main issue on appeal is whether it was error to do so. We hold that the court should have ruled, as a matter of law, that the commissioners were not the agents of First Commercial Bank.
The relation of agency is created as the result of conduct by two parties manifesting that one of them is willing for the other to act for him subject to his control, and that the other consents to so act. The principal must in some manner indicate that the agent is to act for him, and the agent must act or agree to act on the principal’s behalf and subject to his control. Evans v. White, 284 Ark. 376, 682 S.W.2d 733-(1985); Crouch v. Twin City Transit, Inc., 245 Ark. 778, 434 S.W.2d 816 (1968); Restatement (Second) of Agency § 1 and comment a (1957). Ordinarily agency is a question of fact to be determined by the jury; but where the facts are undisputed, and only one inference can be reasonably drawn from them, it becomes a question of law. Evans v. White, 284 Ark. at 378; Campbell v. Bastian, 236 Ark. 205, 365 S.W.2d 249 (1963).
Courts which have considered the specific issue presented here have held that when a bank directs a borrower to obtain the signature of another on a personal guaranty as a condition of making a loan, the act of the borrower in obtaining the signature is one for his own benefit and the borrower is not the agent of the bank. First National Bank of Denver v. Caro Construction Co., Inc., 211 Kan. 678, 508 P.2d 516 (1973); CIT Financial Services, Inc. v. Gott, 5 Kan. App. 2d 225, 615 P.2d 774 (1980); Skrypek v. St. Joseph Valley Bank, 469 N.E.2d 774 (Ind. App. 3 Dist. 1984).
In Caro Construction, Nicholas Caro was the president and sole stockholder of Caro Construction Co., Inc. The corporation had successfully bid on a contract to build a post office building in Golden, Colorado. Mr. Caro applied to First National Bank of Denver for a loan to finance construction. The bank approved the loan on the condition that the note be personally guaranteed by Mr. Caro and his ex-wife, Betty. Nicholas Caro obtained his ex-wife’s signature and the loan was made. When the corporation defaulted on the obligation, the bank sued Nicholas and Betty individually. Betty’s defense was that Nicholas made misrepresentations of fact to her in order to obtain her signature on the guaranty, and because he was an agent for the bank the misrepresentations would be chargeable to the bank under the doctrine of respondeat superior.
The Kansas Supreme Court, quoting Swan Savings Bank v. Snyder, 124 Kan. 827, 262 P. 547 (1928), said:
One who desires to borrow money at a bank, or to renew an indebtedness he has there, and who goes to another, to get him to sign the note with him in order that he can get the bank to accept it, acts for himself and does not act for the bank.
The Court in Caro continued:
The test in determining the existence of agency so the doctrine of respondeat superior is applicable, is the right to control the servant.
The bank had no control over Nicholas in procuring the signature of Betty, nor did the bank attempt to exercise any control. The bank merely required the signature of Betty and stated to Nicholas that if he wished to obtain the loan he would have to obtain her signature. The burden of proof was on Betty to establish by competent evidence the relationship of principal and agent. What constitutes agency and whether there is any competent evidence reasonably tending to prove its existence is a question of law. We conclude as a matter of law no agency existed between the bank and Nicholas Caro. [Citations omitted.]
In the case at bar Wallace Cunningham, the executive vice president for First Commercial Bank, testified that he handled the loan to the improvement district. He testified that the bank originally required that the commissioners themselves individually guarantee the debt. The commissioners declined to do so, and instead proposed that guaranties be obtained from landowners having property within the boundaries of the improvement district.
The guaranty agreement itself was apparently prepared in Mr. Pickens’ office. Cunningham testified that the bank did not give any of the people representing the district any specific instructions about the execution of the loan documents. He said that, as far as he knew, the commissioners were the ones who decided who would sign the guaranty agreement and the amount of each individual’s specific guaranty.
William Pratt testified that in meeting with Mr. Mc-Gaughey he was acting as a commissioner of the district. John Conner testified that First Commercial Bank gave him no instructions about any of the loan documents and that the bank did not have the power to control his actions with regard to the loan transaction. He testified that he was not acting on behalf of the bank, but rather in his capacity as a commissioner of the improvement district.
The relevant portion of Mr. McGaughey’s testimony follows:
A. They [Pratt and Conner] wanted to sign a signature on a guarantee is what it amounted to.
Q. Who was the guarantee in favor of?
A. A bank in Little Rock.
Q. Was there anybody from the Little Rock bank present at the meeting?
A. No. Not that I — they didn’t identify themselves as such.
Q. All right. Who at, who at the meeting had possession of this bank guaranty agreement?
A. John and Bill. [Conner and Pratt]
Q. Do you know how they had come to have or be carrying this guaranty agreement?
A. No, they had it. I, I don’t know how they got it.
Q. Did you know who prepared it?
A. No, I didn’t.
Q. What did they ask you to do with regard to the guaranty agreement?
A. They told me that the Little Rock bank was requiring signatures from landowners and they were collecting the signatures for them.
Q. For who?
A. For, for the Little Rock bank, they were — they were — it was a requirement from them that they have them before the loan would go through evidently.
Q. And they were carrying the guaranty agreement?
A. They, they had it on the — on the table, yes.
Q. What did they want you to sign for?
A. They wanted McGaughey Brothers to sign for $160,000.
# * *
Q. At the time it was first presented to you in ‘8 3, J.C., who did you believe Bill or John, Bill Pratt or John Conner, to be acting on behalf of?
A. Well, these signatures were required and they were getting them for the bank they said.
Q. And so?
A. I — I believed them to be acting for the bank.
Q. Which bank?
A. Little Rock bank.
* * *
Q. Mr. McGaughey, did Mr. Pratt tell you that he was acting for First Commercial Bank?
A. He didn’t tell me who he was acting for.
Q. You heard his testimony in the deposition, did you not, that he was acting for the commissioners?
A. I heard that, yeah.
Q. Do you have any reason to dispute the accuracy of what he said under oath?
A. I believe he was acting for the bank but that wouldn’t necessarily mean. . .
* * *
Q. Do you have any reason, Mr. McGaughey, to dispute what Bill Pratt said?
A. He didn’t tell me directly that he was representing thé bank.
* * *
Q. You made an assumption, didn’t you, Mr. McGaughey?
A. It would, it would have been an assumption, I suppose. It’s all I had to work with.
* * *
Q. They didn’t tell you anything about who they represented.
A. That’s right.
Q. So we can be fair with the jury, in your head you thought they were representing the landowners, which included you?
A. Yes.
When Mr. McGaughey’s testimony is viewed in its entirety it is clear that he merely assumed that Pratt and Conner were acting as agents for First Commercial Bank from the fact that the bank had required that the note be guaranteed. We hold that the evidence was insufficient to create a question of fact on the issue of agency, and that that issue should have been determined by the court in appellant’s favor, as a matter of law.
Of the other issues raised, we reach only those which are likely to recur upon retrial. Appellant contends that the court erred in refusing to give its requested instruction No. 7, This instruction, based on language appearing in First American National Bank v. Coffey-Clifton, Inc., 276 Ark. 250, 633 S.W.2d 704 (1982), would have told the jury, in essence, that a guarantor has liability under a guaranty agreement if the principal debtor defaults. No doubt this is a correct general statement of law, but the matter was adequately covered by other instructions. A trial court is not required to give a repetitious instruction. Porter v. Lincoln, 282 Ark. 258, 668 S.W.2d 11 (1984).
Appellant also contends that the court erred in refusing to give its requested instruction No. 18:
You are instructed that one dealing with an admitted agent has the right to presume, in the absence of notice to the contrary, that he is a general agent, clothed with authority equal to the apparent scope of authority.
Although this is again a correct statement of law, we agree with the trial court that it is inapplicable to the particular facts of the case.
Finally, appellant argues that the court erred in giving the appellees’ requested instruction No. 11:
Any unauthorized signature is wholly inoperative as that of a person whose name is signed unless he ratifies it or is precluded from denying it; but it operates as the signature of the unauthorized signer in favor of any person who in good faith pays the instrument or takes it for value.
Unauthorized signature indicates a signature made by an agent exceeding his actual or apparent authority. The unauthorized signature is effective to impose liability on the actual signor; however, liability is limited to parties who pay the instrument in good faith, and one who knows the signature is unauthorized cannot recover from the signer on the instrument. [Emphasis added.]
In the case at bar there was no evidence that the appellant had actual notice of Mr. McGaughey’s disclaimer of authority. The only way such knowledge could have been imputed to the bank would be under the theory that the improvement district commissioners were agents for the bank. Because we have held that the commissioners were not the agents of the bank, the italicized portion of the instruction should not have been given.
We reverse and remand this case to the trial court for further proceedings not inconsistent with this opinion.
Reversed and Remanded.
Corbin, C.J., concurs.
Mayfield, J., would affirm.
Cooper, J., not participating.
Williams v. Village Creek, White River and Mayberry Levee and Drainage District, 285 Ark. 194, 685 S.W.2d 797 (1985); Mayberry Drainage District v. Graham, 289 Ark. 156, 711 S.W.2d 147 (1986). | [
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George K. Cracraft, Judge.
Gloria Dean Flowers appeals from her conviction of murder in the second degree, for which she was sentenced to a term of eleven years in the Arkansas Department of Correction. She contends only that the trial court erred in admitting into evidence an exculpatory pretrial statement that she made to the police. We find no error and affirm.
The evidence discloses that appellant shot and killed Johnny Brown on the night of August 26,1988, in the City of McGehee in Desha County. Although she eventually pled self-defense, neither she nor any of several companions called an ambulance or hailed a police car which passed by shortly after the shooting. About thirty minutes after the shooting, appellant and her companions put the deceased’s body into the trunk of a car, drove to Pine Bluff in Jefferson County, and dropped off the body on a dirt road near the Arkansas River.
Pine Bluff police officers testified that they found and identified the body early the next morning, and were informed that appellant was his “nearest relative.” An officer then went to appellant’s house to inform her that Brown was dead. At the officer’s request, appellant went to the police station to give a statement. The officer asked appellant when she last had seen Brown and if he had had an argument with anyone recently. Appellant told the officer that she had seen the deceased at her home the previous afternoon, but that he had left around 7:00 p.m. She also told the officer that the deceased had argued with a person named David Dillworth several days earlier. Appellant then signed a written statement containing that information. Later that day, the police were informed by witnesses that appellant and the deceased had been in McGehee the night before, and that appellant had shot the deceased and brought his body back to Pine Bluff. When this information was confirmed by an eyewitness to the killing, appellant was arrested.
In the trial court, appellant’s objection to admission of the pretrial statement was made for the first time when the officer testified. There had been no motion to suppress. The objection was based initially on the failure of the police to advise appellant of her Miranda rights. The trial court properly denied that objection on a finding that it was untimely and that no good cause for its untimeliness had been shown. See Ark. R. Grim. P. 16.2; Oglesby v. State, 299 Ark. 403, 773 S.W.2d 443 (1989); Dodson v. State, 4 Ark. App. 1, 626 S.W.2d 624 (1982). Appellant then made a very general relevancy objection.
On appeal, appellant has abandoned her Miranda arguments and contends simply that the evidence was immaterial to any issue in the case, was highly prejudicial, and was introduced only to inflame the jury. We cannot agree.
“Relevant evidence” is defined as any evidence having the tendency to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Ark. R. Evid. 401. Determinations of the relevancy of evidence and whether its probative value is substantially outweighed by the danger of unfair prejudice are matters within the trial court’s discretion. This court will affirm such determinations absent a showing of an abuse of discretion. Irvin v. State, 28 Ark. App. 6, 771 S. W.2d 26 (1989); Clark v. State, 26 Ark. App. 276, 764 S.W.2d 458 (1989).
As a rule of general application, proof of an attempt to fabricate evidence of innocence, or other conduct amounting to an obstruction of justice, is admissible. See Kellensworth v. State, 276 Ark. 127, 633 S.W. 2d 21 (1982); Kidd v. State, 24 Ark. App. 55, 748 S.W.2d 38 (1988); 2 J. Wigmore, Evidence § 278 (Chadbourn rev. 1979); E. Cleary, McCormick’s Handbook of the Law of Evidence §§ 190, 273 (3rd ed. 1984). When a defendant voluntarily offers an untrue exculpatory statement or explanation, it may be considered as circumstantial evidence of not only one’s belief that his case is weak, but also of guilt itself. Kellensworth v. State, supra. See also United States v. Eley, 723 F.2d 1522 (11th Cir. 1984); United States v. Rajewski, 526 F.2d 149 (7th Cir. 1975).Here, proof that appellant continued to cover up the circumstances of Brown’s death, by lying to the police about her last encounter with him, served directly to rebut appellant’s plea of self-defense and was evidence from which the jury might infer a consciousness of guilt on her part. From our review of the record, we cannot conclude that the trial court abused its discretion in admitting this evidence.
Affirmed.
Cooper and Jennings, JJ., agree. | [
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James R. Cooper, Judge.
The appellant in this criminal case was charged on January 11, 1989 with theft by receiving, a class C felony, and on April 27, 1989, he entered a guilty plea to that charge. At a sentencing hearing held on May 11, 1989, the trial court sentenced the appellant as a habitual offender to thirty years in the Arkansas Department of Correction. From that decision, comes this appeal.
For reversal, the appellant contends that the trial court erred in sentencing him as a habitual offender. We agree, and we modify the sentence imposed by the trial court.
We first address the threshold question of our jurisdiction. The State asserts that this Court lacks jurisdiction to entertain a direct appeal from a guilty plea. We note that direct appeals from guilty pleas are, with few exceptions, prohibited under Arkansas law. See Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987); Ark. Code Ann. § 16-91-101 (c) (1987); Ark. R. Crim. P. 36.1; but cf. Ark. R. Crim. P. 24.3(b). However, we think this general prohibition is addressed to challenges to the adjudication of guilt, and that questions addressed solely to the legality of the sentence imposed may properly be entertained on direct appeal, as the Arkansas Supreme Court did in Brimer v. State, 295 Ark. 20, 746 S.W.2d 370 (1988). We conclude that we have jurisdiction to review the legality of the appellant’s sentence.
The record shows that the State filed a felony information on January 11,1989, alleging that the appellant committed class C felony theft by receiving on January 5,1989. No prior convictions were alleged, and the Habitual Offender Act was not mentioned. On January 23,1989, the State amended the felony information to allege that the appellant committed Class C felony theft by receiving on January 7,1989, rather than January 5, as stated in the original information. Again, no mention was made of prior convictions or the Habitual Offender Act.
At a proceeding held on April 27, 1989, the appellant withdrew his initial plea of not guilty to the charge alleged in the information and entered a guilty plea, and the following exchange took place:
THE COURT: Would you tell him the range of punishment that, uh, he could receive upon a plea of guilty?
BY MR. MORGAN:
Q. Are you aware that you can receive — that the charge you are charged with is a class C felony?
A. Yes, I am aware of it.
Q. And, that you can receive from three to ten years for a class C felony?
A. Yes.
Q. All right. And/or up to a ten thousand dollar fine?
A. Yes, sir.
The trial court proceeded to establish the factual basis for the plea, and then accepted the appellant’s guilty plea and set a sentencing hearing for May 11, 1989.
Although the record is devoid of any allegation of prior convictions or reference to the Habitual Offender Act, the trial court imposed a thirty-year sentence at the sentencing hearing, stating that:
Mr. Sherman, I had a presentence investigation made on you, and I find that, uh, you’re a four-time loser. Burglary and grand larceny in Texas. Theft, you went to the Department of Correction at Huntsville; that was in 1973. The first charge was 1972. 1974 you were charged with murder, and you got life in the Department of Correction at Huntsville. And, November the 6th, ‘85, armed violence, you got six years for that. That’s four-time loser, and you plead guilty here to theft by receiving, which is a C felony. And, for four or more priors on a C felony, you can get from ten to thirty years. I’m sentencing you to thirty years in the Arkansas Department of Correction.
(The presentence report to which the court referred is not a part of the record of this case.) The appellant made a timely objection to any sentence exceeding ten years on the grounds that the State has the burden of proving prior convictions, and that the State had not charged him as a habitual offender.
In Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977), the Arkansas Supreme Court stated that:
Whenever the state seeks to charge one as a previous offender or habitual criminal in order to warrant the imposition of additional punishment for the offense charged, the previous offense is an essential element in the punishment, which must be alleged in the indictment or information.
Finch v. State, 262 Ark. at 316; accord, Clinkscale v. State, 269 Ark. 324, 602 S.W.2d 618 (1980). In the case at bar there is no indication that the State ever alleged previous offenses or charged the appellant as a habitual offender, or that the State took any action to amend the information to include such allegations: instead, the record shows only that the appellant was charged with class C felony theft by receiving. Because the maximum permissible sentence for this offense is ten years where the Habitual Offender Act has not been invoked, see Ark. Code Ann. § 5-4-401 (a)(4) (1987), the thirty-year sentence imposed by the trial court was not an authorized disposition. We therefore reduce the appellant’s sentence to ten years, the maximum allowable under the State’s charges and allegations for the offense to which the appellant entered his guilty plea. See Ellis v. State, 270 Ark. App. 243, 603 S.W.2d 891 (1980); Scott v. State, 1 Ark. App. 207, 614 S.W.2d 239 (1981).
Affirmed as modified.
Corbin, C.J., and Cracraft, J., agree. | [
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Donald L. Corbin, Chief Judge.
This appeal comes to us from Desha County Circuit Court. Appellant, Velerick “Rick” Watts, appeals the trial court’s granting of a motion for summary judgment by appellee, Life Insurance Company of Arkansas. We affirm.
Appellant is the named beneficiary in an application for accidental life insurance coverage which was completed on September 3,1985, by Debbie Watts, appellant’s deceased sister and the named insured. On September 18, 1985, Debbie Watts was murdered. On October 10,1985, appellant submitted proof of claim to appellee. Appellee, upon learning of the death of Debbie Watts, returned the premium that was submitted with the application and denied appellant’s claim for benefits. Appellant on April 23, 1988, filed a complaint claiming entitlement to the proceeds of the accidental life insurance policy. Appellee responded by filing on June 13, 1988, a motion for summary judgment stating that there was no insurance in force at the time of decedent’s death. From the trial court’s granting of the motion on March 2, 1989, comes this appeal.
Appellant’s only point for reversal is as follows:
I.
THE LOWER COURT ERRED WHEN IT CONCLUDED THAT THERE WERE NO GENUINE ISSUES OF MATERIAL FACT TO BE DETERMINED BY A JURY WHEN THE EFFECTIVE DATE ON AN INSURANCE APPLICATION WAS LEFT BLANK UNTIL AFTER IT WAS SIGNED BY THE APPLICANT AND WHEN THERE IS NO LEGITIMATE NEED FOR A WAITING PERIOD BETWEEN THE DATE OF APPLICATION AND THE EFFECTIVE ISSUANCE OF THE POLICY IN THE CASE OF AN ACCIDENTAL DEATH LIFE INSURANCE POLICY.
Arkansas Rules of Civil Procedure 56(c) provides that a summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The appellate court needs only to decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the appellee in support of the motion left a material question of fact unan swered. Barraclough v. Arkansas Power & Light Co., 268 Ark. 1026, 597 S.W.2d 861 (Ark. App. 1980).
Appellee issued a group accident life insurance policy to Dumas Public Schools on October 1, 1983. On September 3, 1985, the decedent, an employee of Dumas Public Schools, applied to appellee for individual life insurance under the policy and on September 18,1985, the decedent died. The policy states, “This policy, including the organization’s application, endorsements and the attached papers, if any, constitutes the entire contract of insurance.” The application which was attached to and formed part of the policy that was issued to Dumas Public School in 1983 provides:
After the policy effective date, newly eligible persons may apply within 31 days after they become eligible, and individual insurance will become effective on the first day of the month next following the date the application is received. Eligible persons who do not apply either during the initial enrollment period or within 31 days after becoming eligible may thereafter apply, but individual insurance shall not become effective until the first day of the month next following the date the application is approved by the Company after submission of satisfactory evidence of insurability. [Emphasis added.]
Appellant asserts that the effective date on the application for insurance was left blank until after it was signed by the decedent thereby making the policy ambiguous as to its effective date and creating a reasonable expectation in the decedent that coverage was in force from the time the premium was submitted with the application. Appellant urges this court to adopt the Pennsylvania rule that although the parties to an insurance contract may fix some future date as the effective date of the policy, the burden is on the insurance company to prove by clear and convincing evidence that the consumer had no reasonable basis for believing coverage would be immediately effective. However, we instead follow our supreme court’s holding in Employers Protective Life Assurance Company v. Gatlin, 246 Ark. 244, 437 S.W.2d 811 (1969), under which an applicant for insurance is afforded no coverage until the coverage becomes effective under the terms of the policy. Only where the receipt or application expressly provides for temporary insurance is the applicant covered prior to the effective date provided in the policy. Dove v. Arkansas Nat’l Life Ins. Co., 238 Ark. 1033, 386 S.W.2d 495 (1965). Furthermore, in order to be ambiguous, a term in an insurance policy must be susceptible to more than one equally reasonable construction. Wilson v. Countryside Casualty Co., 5 Ark. App. 202, 634 S. W.2d 398 (1982). Here, the date which was filled in after the application was submitted and which appellant claims causes an ambiguity in the contract is in that portion of the application clearly marked for use by appellee only and as such is not susceptible to more than one reasonable construction.
The above stated provision from the policy in this case is clear and unambiguous and, as there is no provision for temporary coverage, determines the effective date of the individual insurance applied for by the decedent. Because the decedent died prior to that date, no insurance coverage was in effect under the terms of the policy at the time of her death.
Appellant further asserts that as a matter of public policy, Arkansas law regarding the effective date of coverage for policies such as the one in this case should be changed. He argues that because of the nature of the accidental death policy there is no legitimate reason for a waiting period between the application for the policy and its effective date.
Arkansas courts have held that insurance contracts are subject to the same rules as other contracts as follows:
The insurance company had the right to fix the terms and conditions upon which it would insure the appellee, the latter had the right to accept or reject the insurance under these terms and conditions, but, having accepted the same, it was a contract between them, and, being in violation of no principle of law nor in contravention of the policy of the law, must be enforced according to its terms and meaning; and the courts have the right neither to make contracts for parties nor to vary their contracts to meet and fulfill some notion of abstract justice, and still less of moral obligation.
Interstate Business Men’s Accident Assoc. v. Nichols, 143 Ark. 369, 220 S.W. 477 (1920) (quoting Standard Life and Accident Ins. Co. v. Ward, 65 Ark. 295, 45 S.W. 1065 (1898)). More specifically, our courts have long recognized the right of the insurer to define in its policy the effective date for coverage. See Harris v. Mutual Benefit Health & Accident Ass’n, 187 Ark. 1038, 63 S.W.2d 975 (1933).
The parties to the insurance contract in the case at bar freely entered into the agreement which provided for coverage to be effective no earlier than the first day of the month next following the date of the application. As the application was submitted on September 3, 1985, and the decedent died prior to October 1, 1985, there was at the time of her death no insurance coverage in effect under the terms of the policy.
The power of the courts to declare a contract void for being in contravention of sound public policy is a very delicate and undefined power, and like the power to declare a statute unconstitutional, should be exercised only in cases free from doubt. Sirman v. Sloss Realty Co., 198 Ark. 534, 129 S.W.2d 602 (1939).
We are not convinced by appellant’s arguments that this is one of those cases requiring the contract be declared void and, therefore, decline to do so. Furthermore, based on the foregoing we cannot say that the evidentiary items presented by the appellee in support of the motion for summary judgment left a material question of fact unanswered and, therefore, hold that the granting of summary judgment was appropriate.
Affirmed.
Cracraft and Mayfield, JJ., agree. | [
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Judith Rogers, Judge.
The appellant, Wilma Jean Austin, appeals a decision of the Workers’ Compensation Commission, which held that she had failed to prove by a preponderance of the evidence that the decedent suffered a compensable injury as a result of his work for the appellee, Highway 15 Water Users Association. We find there is substantial evidence to support the Commission’s decision and accordingly affirm.
The record reveals that Hulon Rupert Austin, the decedent, was a supervisor for the appellee. His job duties included checking wells, checking oil in pumps, setting water meters, reading water meters and laying and repairing water lines. On March 7, 1986, Austin and a co-worker, James McGriff, proceeded to Pansey to do cover-up work on some pipe that had been laid the previous evening. As they arrived, Austin parked the truck approximately two to three hundred yards from the pipe, while McGriff unloaded a ditch witch from a trailer behind the truck. Austin cranked the empty trailer up four to five inches in order to unhook the trailer hitch from the truck. He then drove to the job site where McGriff was already working. McGriff testified that when he looked up from where he was working, he saw Austin lying on the ground. Austin died at the job site and the Cleveland county deputy coroner was contacted.
The evidence in the record concerning the cause of death was extracted from the testimony of Billy Rhodes and Dr. Richard Justiss. Billy Rhodes, the Cleveland county deputy coroner, opined that the decedent’s death, as listed on the death certificate, was the result of a myocardial infarction. Rhodes testified, however, that he had no medical school training, and had taken only an emergency medical technician course. Further, Rhodes admitted that he merely guessed at the cause of death.
Q: Now, you’re not certain that MI was the cause of death, are you?
A: That’s just my opinion.
Q: I believe on the telephone you told me that it was basically just a guessing game?
A: It is.
In addition, the deputy coroner did not examine the decedent’s medical records, or talk with his treating physician or his wife prior to making his determination as to the cause of death.
Dr. Richard Justiss, the decedent’s treating physician, testified that under the circumstances of this case, there were four likely causes of death. Those causes included myocardial infarction, cardiac arrhythmia, stroke, and pulmonary embolus.
In an opinion rendered on November 7, 1988, the Commission concluded that there was insufficient credible evidence proving the decedent suffered a compensable injury. The Commission noted that although the deputy coroner may be qualified under the statutes to list a cause of death on a death certificate, his opinion is not conclusive. Thus, the Commission concluded and we agree, that because one is a deputy coroner, that does not, in and of itself, prove one is qualified to assess the cause of death for workers’ compensation purposes. We have consistently held that questions of credibility and the weight to be given the evidence are exclusively within the province of the Commission. Roberts-McNutt, Inc. v. Williams, 15 Ark. App. 240, 691 S.W.2d 887 (1985).
In its opinion, the Commission stated “the fact that Dr. Justiss is a trained medical professional and is unable to state the claimant’s cause of death is particularly significant when his experience and qualifications are compared to the qualifications of the deputy coroner who has no medical training.” We agree. Although it is true that a medical opinion does not have to be expressed as a medical certainty, there must be other supplementary evidence supporting that conclusion. Pittman v. Wygal Trucking Plant, 16 Ark. App. 232, 700 S.W.2d 59 (1985). In this case, the Commission determined that the appellant offered insufficient supplementary evidence supporting the conclusion that the decedent’s death was caused by his employment.
Since there is no clear evidence as to the cause of death, for us to find this claim compensable, we would have to engage in speculation and conjecture which is not a substitute for credible evidence, no matter how plausible. See Dena Const. Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 151 (1979). To find this claim compensable could set the dangerous precedent of finding a claim compensable, simply because the claimant died at work. Such has never been the intent of the workers’ compensation law and workers’ compensation was never intended by our legislature or the courts of this state to become a general insurance policy.
After a careful and thorough consideration of the record in this case, we find there is substantial evidence to support the Commission’s decision that the appellant failed to prove the decedent suffered a compensable injury as a result of his work with the appellee.
AFFIRMED.
Cooper and Jennings, JJ., agree. | [
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James R. Cooper, Judge.
The appellee in this workers’ compensation case was employed as a housekeeper by the appellant Central Arkansas Radiation Therapy Institute from March 1985 to February 1987. She injured her right shoulder while attempting to move a vending machine on March 27,1985. On May 16,1986, she sustained a chemical burn to her foot when she spilled some floor wax stripping solution. In June 1987 she was treated for an abdominal infection which required surgery. After a hearing on her claim for workers’ compensation benefits stemming from the abdominal infection, the administrative law judge found that her abdominal infection was not causally related to her foot injury. However, in an opinion filed March 28,1989, the Workers’ Compensation Commission reached a different conclusion, finding that a causal relationship did exist between the appellee’s abdominal infection and foot injury. The Commission did not award benefits, but instead remanded the case to the administrative law judge for a determination of the extent of benefits to which the appellee would be entitled. From that decision comes this appeal. We dismiss.
To be final, an order must dismiss the parties from the court, discharge them from the action, or conclude their rights as to the subject matter in controversy. Samuels Hide & Metal Co. v. Griffin, 23 Ark. App. 3, 739 S.W.2d 698 (1987). An order which is remanded to the administrative law judge for the taking of additional evidence and which does not award compensation or monetary benefits is not a final order. Baldor Electric Co. v. Jones, 29 Ark. App. 80, 777 S.W.2d 586 (1989). As in Baldor Electric Co., supra, the Commission in the case at bar made findings only with respect to the issue of causation without determining questions relating to the amount and duration of compensation, such as healing period, disability, or reasonable medical expenses. Because the order appealed from is not final and appealable, we dismiss on our own motion. See id.
Dismissed.
Jennings and Rogers, JJ., agree. | [
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George K. Cracraft, Judge.
Laura Gunnell appeals from a decree of the Arkansas County Chancery Court granting Steven Gunnell a divorce. She contends that the chancellor erred in granting the divorce because appellee presented insufficient proof of his grounds. We agree and reverse.
Appellee sought and obtained a divorce on grounds of general indignities. See Ark. Code Ann. § 9-12-301(4) (1987). Appellant did not answer the complaint but did appear at the hearing. Appellee’s entire testimony as to his grounds for divorce was as follows:
Q. Did you all have problems during your marriage?
A. Yes, sir.
Q. Did these problems build up to the point where you all can no longer live together as husband and wife?
A. Yes sir.
Q. And this resulted in your separation?
A. Yes, sir.
Divorce is a creature of statute and can only be granted upon proof of a statutory ground. Harpole v. Harpole, 10 Ark. App. 298, 644 S.W.2d 480 (1984). In Harpole, we quoted the Arkansas Supreme Court’s definition of what evidence is necessary to establish; indignities as a ground for divorce:
It is for the court to determine whether or not the alleged offending spouse has been guilty of acts or conduct amounting to rudeness, contempt, studied neglect or open insult, and whether such conduct and acts have been pursued so habitually and to such an extent as to render the condition of the complaining party so intolerable as to justify the annulment of the marriage bonds. This determination must be based upon facts testified to by witnesses, and not upon beliefs or conclusions of the witnesses. It is essential, therefore, that proof should be made of specific acts and language showing the rudeness, contempt and indignities complained of General statements of witnesses that defendant was rude or contemptuous toward the plaintiff are not alone sufficient. The witness must state facts — that is, specific acts and conduct from which he arrives at the belief or conclusion which he states in general terms — so that the court may be able to determine whether those acts and such conduct are of such a nature as to justify the conclusion or belief reached by the witness. The facts, if testified to, might show only an exhibition of temper or of irritability probably provoked or of short duration. The mere want of congeniality and the consequent quarrels resulting therefrom are not sufficient to constitute that cruelty or those indignities which under our statute will justify a divorce.
10 Ark. App. at 302-303, 664 S.W.2d at 483 (quoting Bell v. Bell, 105 Ark. 194, 195-96, 150 S.W. 1031, 1032 (1912)) (emphasis added by the court in Harpole). See also Price v. Price, 29 Ark. App. 212, 780 S.W.2d 342 (1989).
Here, as in Harpole, appellee testified only in conclusory terms, without any mention of any specific acts or conduct of appellant to justify those conclusions. This proof was clearly insufficient.
Relying on cases related to corroboration of grounds for divorce, appellee argues that, since appellant did not file an answer and testified that she was not contesting the divorce, a different standard of proof of grounds should be applied. We cannot agree. Our law makes a clear distinction between the requirements as to proof of grounds and those as to corroboration of grounds. Except in cases grounded on continuous separation without cohabitation, see Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989); Ark. Code Ann. § 9-12-306(c) (1987), corroboration of grounds is not required in uncontested cases and may be waived in contested cases. Ark. Code Ann. § 9-12-306(a) and (b) (1987). See also Rachel v. Rachel, 294 Ark. 110, 741 S.W.2d 240 (1987). In contested cases where corroboration has not been waived but there is no intimation of collusion, the corroborating evidence may be relatively slight. Hilburn v. Hilburn, 287 Ark. 50, 696 S.W.2d 718 (1985). However, regardless of whether a divorce is contested or uncontested, the injured party must always prove his grounds for divorce; our statutory law does not allow a spouse to waive proof of grounds. Harpole v. Harpole, supra. Nor has there been any reláxation of our rule requiring that the ground of indignities to the person be proved by evidence of specific acts and conduct. Harpole, which cites an unbroken line of cases, makes this clear.
We conclude from our de novo review of the record that appellee failed to offer sufficient proof to warrant a dissolution of the marriage. For this reason, we do not address additional issues presented by this appeal.
Reversed and dismissed.
Mayfield, J., agrees.
Jennings, J., concurs. | [
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Donald L. Corbin, Chief Judge.
This appeal comes to us from Pulaski County Chancery Court. Appellant, Patricia Speight, appeals the dismissal of her motion asking that appellee, Benjamin Speight/Hakim Beyah, be cited for contempt for his failure to comply with the October 4,1983, agreed order by which he was to pay child support in the amount of $200.00 per month. We reverse and remand.
The parties here were divorced in Pulaski County Chancery Court, Second Division, on September 29, 1972. Appellant was awarded custody of the couple’s two minor children and appellee was ordered to pay child support at the rate of $40.00 per week.
Following appellant’s first petition to show cause, appellee on March 12,1975, was held in contempt for his failure to comply with the prior order of the court concerning child support payments. At that hearing appellee was ordered to make the $40.00 per week payments through the Master in Chancery. It was further ordered that appellant have judgment against appel-lee in the amount of $720.00 for arrearages in child support.
In 1979, appellant, then a resident of Michigan, through that state filed an incoming Uniform Reciprocal Enforcement of Support Act action asking the court to order appellee to properly support his minor children. A hearing on the petition was held November 27,1979, at which time child support was set at $60.00 per week and a wage assignment was granted.
Appellant again in 1981 filed a motion and show cause order. A December 7,1981, hearing resulted in judgment for appellant in the sum of $11,315.00 for past due child support and a wage assignment for $75.00 per week. Of this amount, $60.00 was to be current support and $15^00 was to be applied to arrearages.
On October 4, 1983, another contempt motion filed by appellant was resolved. By way of an agreed order entered into by the parties appellant was given judgment for an additional $3,760.00 in arrearages and child support was revised to $160.00 per month for current support and $40.00 per month to be applied to arrearages.
Appellant, on October 25, 1988, filed an amended motion alleging new arrearages of $5,955.00 for the period March 1, 1984, through August 31, 1988. At the November 8, 1988, hearing on the motion in Pulaski County Chancery Court, appellee’s counsel moved that appellants’ motion be dismissed based on the common law theory of election of remedies. Appellee asserted that the 1983 wage assignment barred any subsequent action for contempt because the two were opposite remedies. From the chancellor’s granting this oral motion to dismiss with prejudice comes this appeal.
Appellant raises the following three points for reversal: 1) The chancellor erred in granting appellee’s oral motion to dismiss because it was not properly pled or proven; 2) the chancellor erred in granting appellee’s oral motion to dismiss based on an election of remedies theory because the “remedies” sought herein do not fit the requirements for an election of remedies theory; 3) the chancellor erred in granting appellee’s oral motion to dismiss based on an election of remedies theory because Ark. Code Ann. § 9-14-202 proscribes such a ruling. However, because we find merit in appellant’s second point we will not address the first or last points.
Appellant in her second point argues that a wage assignment for the payment of chid support and a motion and show cause order requesting that the court exercise its contempt power are not the types of totally separate remedies to which the election of remedies doctrine applies.
For the election of remedies doctrine to apply there must be concurrent, inconsistent remedies. Toney v. Haskins, 111 Ark. 190, 608 S.W.2d 28 (Ark. App. 1980). Furthermore, the election of remedies rule is not favored by the courts. Id. at 198, 608 S.W.2d at 32.
The first consideration is whether there actually are two remedies involved. In making this determination we look at both the nature of a wage assignment and that of the contempt order. In support of her argument appellant asserts that a show cause proceeding in which the defendant is accused of willful contempt of court for failing to pay child support will be adjudicated on the merits by the court. After either a judgment is granted for the arrearages or the defendant purges himself of the contempt or otherwise satisfies the court’s requirement in this regard, the proceeding is finalized and the plaintiff cannot in the future raise the same issues concerning those arrearages. The issue regarding those particular arrearages is res judicata in any subsequent proceeding.
She also contends that in contrast, a wage assignment is merely a procedural administrative device made available to the court by statute to facilitate the regular payment of child support. The court, at any time upon proper motion, can modify the wage assignment as to the amount paid and the time of payments, as well as the party to whom it is directed.
Appellant continues by stating that a contempt proceeding instituted by the obligee in a child support case is clearly a legal remedy which is pursued to enforce the obligation, whereas, the implementation of an income withholding order is not a legal remedy in the sense required to make the election of remedies doctrine applicable.
We agree with appellant’s assertion that the actions of requesting a wage assignment for payment of a child support obligation and a subsequent show cause proceeding are not two remedies between which the movant is required to choose under the election of remedies theory. Therefore, it was error for the chancellor, based on an election of remedies theory, to dismiss appellant’s motion for contempt. For this reason we reverse and remand.
Reversed and remanded.
Cooper and Rogers, JJ., agree. | [
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Donald L. Corbin, Chief Judge.
This appeal comes to us from Washington County Chancery Court. Appellant, Nancy Powell, appeals from the December 19,1988, decree wherein the chancellor found that appellees, James A. Miller and Sue Ellen Miller, own their land free and clear of any easement right on the part of appellant. We reverse and remand.
On September 1, 1972, appellant and her now deceased husband, together with Tommy L. Goodwin and Alice F. Goodwin, appellees’ predecessors in title, purchased, as tenants in common of an undivided one-half each, a 25-acre tract of land in Washington County, Arkansas. On that same day the two couples divided the tract into what was approximately a northern half and a southern half and, appellant taking the southern tract and the Goodwins taking the northern one, each couple conveyed in fee simple to the other their interest in the other’s respective tract of land.
Prior to the purchase and division of the 25-acre tract by appellant and the Goodwins, a survey of the property was done which showed the claimed easements. No record of the survey was ever filed with Washington County, but an easement was reserved in a mortgage given to First National Bank Fayetteville by the Goodwins in 1975.
On August 11,1986, appellees purchased the northern tract of land from the Goodwins. The warranty deed from the Good-wins to appellees contained this language: “Subject to, and having ingress and egress rights to the following 30 foot road easement, having its center-line described as follows, to wit
Appellees, on June 19,1987, initiated this action by filing a Petition to Quiet Title and Confirm Title to the property claimed as an easement by the appellant. On July 31,1987, appellant filed a counterclaim to quiet and confirm title to the claimed easement in her own name and, in the alternative, to be granted an easement by necessity. On January 13, 1988, appellant filed a motion for summary judgment. The chancellor denied the motion, finding that there existed a genuine issue of material fact as to whether appellees had notice of the easement when they bought the property. A trial was held on December 1,1988. The chancellor in his decree found that appellees had notice of the easement from language which was included in their deed and also found in their title insurance, that appellant had used appellees’ tract for access to her own tract but had not established a passage-way or any other evidence of a prescriptive easement; and that because of the absence of evidence of either adverse holding or consistent use, the “subject to” language in the documents did not give appellant an easement. The chancellor also denied appellant’s claim to an easement by implication and specifically held the following:
6. That there is no “way of necessity” to be determined by this Court, in that jurisdiction over a way of necessity is solely for the County Court and the County Judge. Therefore, the Counterclaim for a way of necessity is likewise overruled.
Appellant raises the following three points for reversal:
I.
THE TRIAL COURT ERRED IN NOT ENTERING JUDGMENT IN FAVOR OF THE APPELLANT BECAUSE THE ONE FACTUAL ISSUE HE FOUND TO BE IN DISPUTE IN THE MOTION FOR SUMMARY JUDGMENT, WAS WHETHER OR NOT THE APPELLEES HAD NOTICE OF THE EASEMENT, AND THIS ISSUE WAS RESOLVED IN FAVOR OF THE APPELLANT AT THE TRIAL.
II.
THE TRIAL COURT ERRED IN FINDING THAT EVEN THOUGH APPELLEES HAD NOTICE OF AN EASEMENT ACROSS THEIR PROPERTY AND THAT THE APPELLANT, NANCY POWELL, DID IN FACT USE THE TRACT OF LAND IN ORDER TO OBTAIN ENTRY TO HER OWN TRACT OF LAND, THE APPELLANT HAD FAILED TO ESTABLISH THAT ANY CONSISTENT PATH WAS FOLLOWED AND THEREFORE THERE WAS NO EASEMENT ESTABLISHED BY THE APPELLANT OVER THE PREMISES.
III.
THE TRIAL COURT ERRED IN FINDING THAT THE CHANCERY COURT DID NOT HAVE JURISDICTION TO GRANT A WAY OF NECESSITY IN APPELLANT’S FAVOR.
We do not address appellant’s first two points because we find merit in appellant’s third point which requires reversal.
While the county court does have jurisdiction to create a way of necessity in the form of a public road, Arkansas Code Annotated Section 27-66-401 (1987), a landowner who is without legal access to his property and who once had a right of access or could have had a right of access via what was once part of his own land that now belongs to another, upon the showing of certain prerequisites, is entitled under common law as adopted in Arkansas to either an easement by necessity or an easement by implication. Burdessv. United States, 553 F. Supp. 646 (1982). Precedent establishes that determining a common law easement by necessity is a matter of equity within the jurisdiction of the chancery court. See Kennedy v. Papp, 294 Ark. 88, 741 S.W.2d 625 (1987); Brandenburg v. Brooks, 264 Ark. 939, 576 S.W.2d 196 (1979); Mettetal v. Stane, 216 Ark. 836, 227 S.W.2d 636 (1950); Messer v. Houston, 212 Ark. 349, 205 S.W.2d 467 (1947); Boullioun v. Constantine, 186 Ark. 625, 54 S.W.2d 986 (1932); Arkansas Power and Light Co. v. Hilliard, 185 Ark. 383, 47 S.W.2d 575 (1932); Vassar v. Mitchell, 169 Ark. 792, 276 S.W. 605 (1925).
Appellee asserts that jurisdiction to establish a way of necessity lies solely in the county court under Arkansas Code Annotated Section 27-66-401, and the chancellor is, therefore, correct in his ruling. Our constitution places jurisdiction of matters of equity in the courts of chancery, Ark. Const, art. 7, § 15. This jurisdiction cannot be enlarged or diminished by legislative action. Patterson v. McKay, 199 Ark. 140, 134 S.W.2d 543 (1939).
The statute on which appellee bases his argument provides for the situation where lands of any owner are so situated as to render it necessary to have a private road from such land to any public road over the lands of any other person and the other person refuses to allow that owner the private road. The statute states that it shall be the duty of the county court to appoint viewers to lay off the road, provided: the owner gives the required notice, petitions the court, shows necessity, shows that the person refuses to allow the road, and deposits with the clerk of the court sufficient money to pay certain costs and expenses. Regarding this statutory provision for obtaining a means of access to one’s property, our supreme court in Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983), stated, “An individual who is landlocked and proceeds under § 76-110 [now codified at Ark. Code Ann. § 27-66-401 (1987)] has no other alternatives available to him. If he were not granted access to his land under such a statute, he would have no remedy.” This statute provides for any situation in which a landowner is landlocked. Before its enactment, those owners of landlocked property who could not establish entitlement to a common law easement were without means by which to gain access to their property.
Although a legislative body has the power to alter the common law, Nietert v. Citizens Bank and Trust Company, 263 Ark. 251, 565 S.W.2d 4 (1978), it is a principle of statutory construction that a statute will not be construed as overruling a principle of common law, “unless it is made plain by the act that such a change in the established law is intended.” White v. State, 290 Ark. 130, 136, 717 S.W.2d 784, 787 (1986) (quoting Starkey Constr., Inc. v. Elcon, Inc., 248 Ark. 958, 457 S.W.2d 509 (1970)). The language of the statute here does not indicate that it was intended to overrule the common law remedy of granting a “way of necessity.” Furthermore, it did not, as it could not, abrogate the jurisdiction conferred by our constitution to the chancery court to decide such matters of equity.
The prerequisites to the creation of an easement by necessity are: 1) the titles to the two tracts in question must have been held by one person; 2) the unity of title must have been severed by a conveyance of one of the tracts; 3) the easement must be necessary in order for the owner of the dominant tenement to use his land with the necessity existing both at the time of the severance of title and at the time of exercise of the easement. Burdess, 553 F. Supp. at 649-50. Although the chancellor here, believing jurisdiction to be in a different court, did not make a determination as to the proof of the prerequisites, our review of the record reveals that they were proved. We therefore reverse and remand for determination consistent with this opinion.
Reversed and remanded.
Cracraft and Cooper, JJ., agree. | [
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Melvin Mayfield, Judge.
Appellant, Western Sizzlin of Russellville, appeals a decision of the Board of Review holding that the claimant left hér last work due to illness after making a reasonable effort to preserve her job rights.
The evidence showed that claimant, Nancy Myers, was frequently late to work, or absent from her work. On June 5,1987, she was given a written warning which stated:
Late for work Fri. A.M.
Nancy has been late or has missed work several times in the past 3 weeks.
This should be considered her final warning. Any more unexcused absences will result in termination.
This warning was signed by Mark Bazyk, appellant’s owner, and Nancy Myers.
On August 22,1987, another written warning was issued for substandard work and failing to show for her shift. This warning states it is claimant’s last warning, if she cannot work when scheduled, she will no longer “work here.” Claimant’s last scheduled work was August 25, 1987, but she did not show up.
Claimant testified she did not show up or call in on August 25 because she was abusing a drug called “Dilaudid” and did not know what was going on. Two weeks later, she was taken to a detox clinic by her sister. Claimant testified she did not notify appellant of what was going on because she thought she had lost her job. She said she was in very bad shape because of the effects of the drug and really did not care whether she lost her job or not. She also admitted that she had missed work back in April; that this was also drug related; and that she had been given a warning at that time not to miss another day within three to six months without calling in or giving notice.
Harold Litton, appellant’s manager, testified that the claimant never came in or discussed her drug problem; that if she had called in or someone had contacted them and explained what was happening, they would have worked with her very hard. He said he would have considered giving her whatever time off was necessary to go through detox and then to return to work; however, she made no effort to get back to them until they got her unemployment claim.
The Employment Security Division denied benefits finding claimant quit her work because of disability, but had not shown that she made reasonable efforts to preserve her job prior to leaving. This decision was reversed by the Appeal Tribunal which found that since the drug precluded claimant from thinking clearly about her situation, it would be an inequity to disqualify her for not calling her employer about her situation. “Therefore,” it was concluded, “she left last work due to illness, after making a reasonable effort to preserve her job rights.” The Board of Review affirmed and adopted the decision of the Appeal Tribunal.
For reversal, appellant makes two arguments. First, it argues that the claimant should not receive unemployment benefits for an inability to work caused by “self-induced drug addiction.” However, we do not find it necessary to address that issue. Appellant’s other argument is based upon its contention that the Board’s finding that claimant made a reasonable effort to preserve her job rights is not supported by substantial evidence.
Arkansas Code Annotated § 11-10-513 (1987) (formerly Ark. Stat. Ann. § 81-1106(a) (Supp. 1985)) provides as follows:
(a)(1) If so found by the director, an individual shall be disqualified for benefits if he, voluntarily and without good cause connected with the work, left his last work.
(2) . . . .
(b) No individual shall be disqualified under this section if, after making reasonable efforts to preserve his job rights, he left his last work due to a personal emergency of such nature and compelling urgency that it would be contrary to good conscience to impose a disqualification or if, after making reasonable efforts to preserve job rights, he left his last work because of illness, injury, pregnancy, or other disability.
Cases applying this statute have recognized that legislation providing for unemployment benefits is remedial in nature and should be liberally construed, but the cases have not rendered the statute meaningless. In Gordos Arkansas, Inc. v. Stiles, 16 Ark. App. 30, 696 S.W.2d 320 (1985), this court said:
We are not unmindful of the policy announced in Harmon v. Laney, 239 Ark. 603, 393 S.W.2d 273 (1965), where it was stated: “Strict constructions which result in defeat of the intended purposes of the Act will not be sanctioned by this court.” However, Ark. Stat. Ann. § Sill 06 (a) clearly provides that an individual must make reasonable efforts to preserve his or her job rights in order to avoid disqualification for benefits. There is no evidence to support the Board’s finding that appellee made reasonable efforts to preserve her job rights. Accordingly, we reverse and remand for the Board of Review to issue an order denying benefits to appellee because of her total failure to make reasonable efforts to preserve her job rights.
16 Ark. App. at 33. In Daves v. Sears Roebuck & Co., 255 Ark. 723, 502 S.W.2d 106 (1973), the Arkansas Supreme Court affirmed the denial of benefits and said: “It is undisputed that appellant made no effort to preserve any job rights, such as a request for transfer to another department.” And in Timms v. Everett, 6 Ark. App. 163, 639 S.W.2d 368 (1982), we said: “This court has held that an individual may preserve his job rights by requesting a leave of absence from his employer.”
In the instant case, the claimant signed a form, submitted to the Employment Security Division for the purpose of obtaining unemployment compensation, in which she said it was necessary for her to quit her job because she was “addicted to Dilaudid for 8 months prior to quitting.” The Appeal Tribunal’s decision, adopted by the Board of Review, found that “claimant missed a considerable amount of time from work for this employer because she was abusing the drug, Dilaudid.” The claimant admits that she was told in April that she should not miss work again without giving notice, and it is undisputed that on June 5, 1987, the claimant was given a written warning, which she signed, stating that any more unexcused absences would result in termination. Faced with the above circumstances, it is clear that making a reasonable effort to preserve her job rights would require more than simply waiting until she had to miss work again in August and then filing a claim for unemployment benefits.
Claimant argues, however, that since she had been “warned that any further absence would result in termination” she was “not required to preserve her job rights when to do so would have been a futile gesture.” Graham v. Daniels, 269 Ark. 774, 601 S.W.2d 229 (Ark. App. 1980), and Oxford v. Daniels, 2 Ark. App. 200, 618 S.W.2d 171 (1981), are cited as authority for claimant’s argument. In Graham, the employee had asked for transfers to other areas of work but, even though his requests were granted, his asthmatic condition persisted and when his employer said there were no other jobs available the claimant quit. In Oxford, the employee was given a job which, because of physical handicaps, he could not perform. However, he had told the employer of his handicaps and had been informed that this was the only position available, and “they thought he could handle the job.” The employee had to quit because of his disability, but he was allowed unemployment benefits because he “was entitled to believe that no other position would be available to him.”
Obviously, the instant case is unlike either Graham or Oxford. Had the claimant here told her employer back in April or in June that she had a drug problem and wanted a leave of absence to go to a detoxification unit, she would be in position to claim she had made a reasonable effort to preserve her job rights. Or, if claimant had simply asked her employer to be indulgent in case she missed work because of her drug problem, there would be some evidence to cite in support of her claim that a reasonable effort to preserve job rights had been made. The owner of the business where claimant was employed testified that the claimant was a very good worker and that they try to work with their employees. He gave two examples where employees were given leave to take care of personal situations. But he was not aware of the claimant’s problem and she had not even contacted them after she got through with her detox treatment. Here, as we said in Gordos, supra, the claimant “took no active steps to preserve her job rights.” In Shipley Baking Co. v. Stiles, 17 Ark. App. 72, 74, 703 S.W.2d 465 (1986), we said:
It is essential that the Board’s findings of fact be supported by substantial evidence upon which a particular conclusion could reasonably have been reached. We are not at liberty to ignore our responsibility to determine whether the standard of review has been met.
In the instant case, we cannot hold that the Board of Review’s finding that the claimant made a reasonable effort to preserve her job rights is supported by substantial evidence. Therefore, the decision of the Board is reversed and the claim for unemployment benefits is dismissed.
Cooper, J., dissents. | [
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Melvin Mayfield, Judge.
Appellant was convicted of robbery and sentenced to five years in the Arkansas Department of Correction. On appeal, she argues that (1) the trial court erred in refusing to suppress statements she made to police while in custody, and (2) the court erred in denying her motion for continuance for time to obtain the presence of an out-of-state witness. We affirm.
The evidence shows that on March 21, 1988, Fort Smith police officers were called to appellant’s house where a shooting had taken place. Appellant’s mother and a police officer had been shot. Officer Clay Thomas asked appellant, who was a witness to the incident, to accompany him to the police station to make a statement about the shooting. At that point appellant was not a suspect in the shooting incident or any other crime and she was not under arrest; she was merely a witness to the shooting. Appellant was, however, informed of her Miranda rights and she signed the waiver form.
Although the time sequence surrounding appellant’s interrogation is somewhat unclear, Officer Thomas began taking a tape recorded statement from the appellant at approximately 1:00 p.m. While Thomas was questioning appellant about the shooting, he received information from other detectives that appellant’s sister, Penny, who was also being interviewed, had implicated the entire family in a number of recent robberies. Thomas then questioned appellant about the robberies, but she denied any knowledge of them. About 3:00 p.m., Officer Thomas took appellant to her home to get her six-year-old daughter. They did not find her there, so they went to the child’s school; however, the juvenile authorities had already picked up the child in anticipation that no one else would do it, and the appellant was later informed that this had occurred.
After they returned to the police station, the appellant admitted that her mother had committed several of the robberies and that appellant had driven the vehicle. This statement was typed, the appellant signed it, and she was arrested. The following day, appellant gave another signed statement which gave more details of the robberies.
Counsel for appellant made a motion to suppress appellant’s statements on the basis that they were illegally obtained. After a hearing, the trial court denied the motion. On appeal, it is argued that the court erred in refusing to suppress appellant’s statements because they resulted from an unlawful seizure in violation of appellant’s Fourth Amendment rights of the United States Constitution and violated Arkansas Rule of Criminal Procedure 2.3. Appellant contends she was seized from her home without being told that she did not have to accompany the officer to the
police station and that reading her the Miranda rights did not cure the seizure. Although the officer testified that appellant was not under arrest, appellant contends she was “in custody” as defined in United States v. Mendenhall, 446 U.S. 544 (1980). She points out that she has only a tenth-grade education; that she was very emotional after her mother was shot; that she was not told she was free to leave; that Officer Thomas never let her out of his sight; and that she was even accompanied to the toilet by a policewoman.
It is well established that one is not under arrest simply because he voluntarily accompanies police officers to the station for questioning. See Morales v. New York, 396 U.S. 102 (1969); United States v. Bailey, 447 F.2d 735 (5th Cir. 1971); Dillon v. State, 454 N.E.2d 845 (Ind. 1983); State v. Coy, 234 Kansas 414, 672 P.2d 599 (1983); State v. Thibodeaux, 414 So.2d 366 (La. 1982); State v. Barker, 53 Ohio St. 2d 135, 372 N.E.2d 1324 (1978); and People v. Wipfler, 68 Ill. 2d 158, 368 N.E.2d 870 (1977). See also Owens v. State, 283 Ark. 327, 675 S.W.2d 834 (1984), where the Arkansas Supreme Court said that one who voluntarily accompanies an officer cannot claim he was coerced. 283 Ark. at 331. A person has not been seized within the meaning of the Fourth Amendment until, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. United States v. Mendenhall, 446 U.S. 544 (1980). Mendenhall also said: “Our conclusion that no seizure occurred is not affected by the fact that the respondent was not expressly told by the agents that she was free to decline to cooperate with their inquiry, for the voluntariness of her responses does not depend upon her having been so informed.” Id. at 555.
In reviewing a trial judge’s decision on a motion to suppress, the appellate court makes an independent determination based upon the totality of the circumstances but will reverse the trial court’s ruling only if that ruling was clearly against the preponderance of the evidence. Cooper v. State, 297 Ark. 478, 763 S.W.2d 645 (1989); Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988).
Under the totality of the circumstances in the instant case, we cannot hold that appellant was illegally seized or that she was even in custody until after she made her incriminating statements. In his testimony, Officer Thomas made it clear that when he first came into contact with appellant, she was not under arrest or suspicion. He testified that she voluntarily accompanied him to the police station to make a statement as a witness to the shooting incident at her house. The record shows that before the officer took any statement from appellant he told her she was not a suspect in the shooting incident or any other crime and that she was not under arrest. The officer testified that at no time did he use force or coerce appellant in any way; that she was free to go at any time prior to her confession; that she was advised of her Miranda rights and voluntarily waived them; and that at no time did appellant ask to leave or request the presence of an attorney.
The appellant also contends that it is undisputed that there was a violation of Arkansas Criminal Procedure Rule 2.3. To place this rule in proper perspective, we need to first look at Rule 2.2. That rule provides that a law enforcement officer may request a person to respond to questions, to appear at a police station, or to comply with any other reasonable request but “no law enforcement officer shall indicate that a person is legally obligated to furnish information or to otherwise cooperate if no such legal obligation exists.” Rule 2.2 ends with this sentence: “Compliance with the request for information or other cooperation hereunder shall not be regarded as involuntary or coerced solely on the ground that such a request was made by a law enforcement officer.” Turning now to Rule 2.3, we note it provides that if an officer acting pursuant to “this rule” requests a person to come to or remain at a police station, prosecuting attorney’s office or other similar place, “he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such request.”
Considering the language in Rules 2.2 and 2.3, we cannot agree with appellant that it is “undisputed” that Rule 2.3 was violated. In deciding whether Officer Thomas took “such steps” as were “reasonable” to make clear that there was no legal obligation for appellant to accompany him to the police station, we have to consider the officer’s testimony that he told appellant that she was not a suspect in the shooting incident or any other crime and that she was not under arrest. As the brief for the state contends: “Rule 2.3 does not require the recitation of magic words.” Taken in context with Rule 2.2, we think under all the circumstances in evidence here there was an issue of fact as to whether Officer Thomas took “such steps” as were “reasonable” to make it clear that appellant had no legal obligation to comply with the request that appellant go to the police station with the officer. Thus, we do not reverse the trial court on this point.
Appellant has also argued that the totality of the circumstances surrounding her statements show they were not freely and voluntarily given and were taken in violation of her Fifth Amendment rights. Since the evidence will support a finding that the statements were, in fact, voluntarily given, it clearly appears that this argument assumes that appellant was illegally detained. This is an assumption to which we do not agree. As discussed above, the evidence supports a finding that appellant went to the police station voluntarily; that she was read the Miranda warning and it was only after Officer Thomas was advised of the statement made by appellant’s sister that the questioning of appellant centered on the robberies; that at this time the officers had information amounting to probable cause to hold appellant; and, therefore, she was not illegally detained when she made the statements admitting her part in the crime for which she was convicted. Since appellant’s suppression argument is based upon the contention that she was illegally detained, it is not necessary to discuss Brown v. Illinois, 422 U.S. 590 (1975), relied upon by appellant for the contention that her inculpatory statements were not admissible because they were tainted by police illegality.
Appellant also argues that the court abused its discretion in denying her motion for a continuance to enable her to locate a missing out-of-state witness. Appellant argues that she subpoenaed a witness to one of the robberies who could have provided exculpatory evidence. Although the beginning of the trial was delayed for several hours while the court got in touch with an Oklahoma sheriff and attempted to get the witness to court, the witness could not be located and did not appear at trial.
A motion for continuance is addressed to the sound discretion of the trial court. Its action will not be reversed absent a clear abuse of that discretion amounting to a denial of justice, and the burden is on the appellant to demonstrate such abuse. In considering whether the court’s discretion has been abused in a particular case, the circumstances of the case must be examined with emphasis on the reasons presented to the judge at the time. Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983).
The record shows that diligent effort had been made by both defense counsel and the prosecution to locate this witness. Her husband had expressed “some reluctance” to being involved in the case, according to defense counsel, and there is no indication that extra time would have resulted in the production of the witness. Under the circumstances, we cannot say that the trial court abused its discretion in refusing the continuance. Moreover, we note that the statement of this witness was introduced into evidence without objection.
Affirmed.
Corbin, C.J., and Cracraft, J., agree. | [
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James R. Cooper, Judge.
This is the second appeal in this paternity case. In the first appeal, Ross v. Moore, 25 Ark. App. 325, 758 S.W.2d 423 (1988), we reversed the trial court’s finding that the decedent, Robert Ross, was the putative father of the appellee’s two children because the appellee had not proven her case by clear and convincing evidence. Although a blood test had been performed in connection with those proceedings, the results were not made part of the record.
In the second trial, the blood test report from National Paternity Laboratories, Inc., was introduced into evidence over the objection of the appellant. At the conclusion of the hearing, the circuit court again found that the decedent was the putative father. From that decision, comes this appeal.
The appellant argues that the evidence was insufficient to establish paternity, that the trial court erred in allowing the blood test report to be admitted into evidence, and that the trial court erred in allowing the decedent’s former attorney to testify. We agree that the trial court erred in permitting the blood test report to be introduced, and we reverse and remand.
At the second hearing, a report from National Paternity Laboratories, Inc., was admitted into evidence. This report was addressed to Joe Cambiano, the decedent’s former attorney. It stated:
On August 25, 1983 blood specimens were received from the Child Support Enforcement Unit on Robert Ross (alleged father), Dorothy M. Moore (presumed mother), Tracy J. Moore (child #1) and Dexter Moore (child #2) for the purpose of paternity exclusion studies. Completed identification forms of all parties are in our files.
The report stated further that the plausability of paternity for Tracy was % 98.39 and for Dexter % 96.7. The report concluded that it was very likely that both children were fathered by the decedent. The report was signed by Laboratory Director Randall A. Smith, Ph.D., and his signature was notarized.
The appellant objected to the introduction of this report because it did not reflect that it was performed by a duly licensed physician appointed by the court in accordance with Ark. Code Ann. § 9-10-108 (1987). The appellant also objected because
[H]e does not show that the blood in these samples were drawn by the physicians or person qualified to do so to administer the test. Without that foundation, your honor, and without that testimony the report itself is not subject to being introduced.
Later in the hearing, the appellant again objected on the grounds that the report did not show that the people who conducted the test were qualified, and that a proper foundation had not been laid. The appellant then referred to subsection § 9-10-108(b), which was in effect at the time of the hearing, and which provided that:
(b) The tests shall be made by a duly qualified physician or physicians, or by another duly qualified person or persons, not to exceed three (3), to be appointed by the court.
Subsection (c) further provided that:
(c)(1) The results of the tests shall be receivable in evidence.
(2) A written report of the test results by the duly qualified expert performing the test, certified by an affidavit duly subscribed and sworn to by him before a notary public, may be introduced in evidence in illegitimacy actions without calling the expert as a witness. If either party shall desire to question the expert in those cases where he has performed the blood tests, the party shall have him subpoenaed within a reasonable time prior to trial.
(3) The experts shall be subject to cross-examination by both parties after the court has caused them to disclose their findings.
(C/. Ark. Code Ann. § 9-10-108 (Supp. 1989)) (changing prior law). The appellant contends that it was error for the trial court to admit the report into evidence because no foundation was laid pursuant to subsection (b). Although the circuit court has broad discretion in determining whether such reports should be admitted into evidence, Chandler v. Baker, 16 Ark. App. 253, 700 S.W.2d 378 (1985), we hold that the trial court abused its discretion in this case.
Prior to the adoption of Ark. Code Ann. § 9-10-108, this report would have been considered inadmissible hearsay, and in order to be admissible and fall into one of the exceptions to the hearsay rule, certain foundational requirements must have been met. Shipley v. State, 25 Ark. App. 262, 757 S.W.2d 178 (1988). For example, in order for this evidence to fall into the medical diagnosis exception, the proponent would have to show that the statements were made for the purpose of medical diagnoses or treatment. Ark. R. Evid. 803(4). Other medical records may be admitted where there is a showing of trustworthiness or authenticity, see Lee v. State, 266 Ark. 870, 587 S.W.2d 78 (1979), or where the author of the medical report is in court to testify and is subject to cross-examination. See Southern Farm Bureau Casualty Ins. Co. v. Pumphrey, 256 Ark. 818, 510 S.W.2d 570 (1974).
The purpose of § 9-10-108 is to relax these foundational requirements and make it less difficult to introduce paternity testing results into evidence. However, to insure the reliability of this type of testing, the foundational prerequisites in the statute must be met. See Newton v. Clark, 266 Ark. 237, 582 S.W.2d 955 (1979). In light of the fact that recently developed genetic testing can, with a high degree of certainty, identify the father of a child and, thus, be viewed as conclusive by the fact-finder in paternity suits, we do not think that strict adherence to the statutory prerequisites is unreasonable.
In Tolhurst v. Reynolds, 21 Ark. App. 94, 729 S.W.2d 25 (1987), we upheld the trial court’s refusal to admit a similar blood test report because the persons testifying about the report were not the persons who actually conducted the test. In that case the person supervising the tests and the person who verified the results testified, but both admitted that they did not actually perform the tests. We held that the person making the test must make the verification on the test. Since that was not done in this case we must reverse and remand.
In this case, the appellee has totally failed to establish the statutory foundation which is a prerequisite to admission into evidence. There is nothing in the report to indicate the identity of the person who performed the test or whether the person who performed the test was a duly qualified expert. Although the report is signed by Dr. Smith and states that Dr. Smith is the laboratory director, there is nothing in the report to indicate that Dr. Smith was the person who performed the test, or that he was a qualified expert. On this record we cannot say that a proper foundation was laid. See Newton v. Clark, 266 Ark. 237, 582 S.W.2d 955 (1979); Simolin v. Wilson, 253 Ark. 545, 487 S.W.2d 603 (1972).
The appellant also argues that the trial court erred in allowing the decedent’s former attorney to testify because it violated the lawyer-client privilege set out at Ark. R. Evid. 502(b). Mr. Cambiano testified that the paternity report came from his files. He also testified that the decedent admitted to him that he had fathered the children, that he had visited the children and had taken them gifts, and that he was willing to support them but did not want to be forced to by the courts.
The appellant first asserts that it was error for the trial court to introduce the report into evidence because it came from Mr. Cambiano’s files and was privileged. We address this issue and the appellant’s issue concerning Mr. Cambiano’s testimony because they are likely to recur in another trial.
The general rule of attorney-client privilege is set forth in Ark. R. Evid. 502(b):
A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself or his representative and his lawyer or lawyer’s representative, (2) between his lawyer and the lawyer’s representative, (3) by him or his representative or his lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.
In Ark. R. Evid. 502(a) (4), a “representative of the lawyer” is defined as “one employed by the lawyer to assist the lawyer in the rendition of professional services.” Furthermore, the privilege may be claimed by the personal representative of a deceased client. Ark. R. Evid. 502(c).
The communication from National Paternity Laboratories to Mr. Cambiano was not a communication protected by the attorney-client privilege. Mr. Cambiano testified that the blood tests were ordered by the county court and clearly National Paternity Laboratories did not qualify as a “representative of the lawyer.” We cannot say that the circuit court erred in admitting Mr. Cambiano’s testimony about the report or in admitting the report into evidence.
The appellant also contends that it was error to allow Mr. Cambiano to testify about what the decedent told him. The appellee argues that there is an exception to the attorney-client privilege in accordance with Ark. R. Evid. 501(d)(2) which provides in pertinent part:
(d) Exceptions. There is no privilege under this rule:
(2) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transactions.
The appellee contends that, because the appellant is an heir of the decedent and she is making a claim against the estate on behalf of her children, both parties are claiming “through the same deceased client.”
On this record, we cannot determine whether the exception applies. It is clear that the appellant is the administrator of the estate, but that does not necessarily mean that he is claiming through the decedent. There are some comments by the appellant’s attorney which indicate that the appellant is the decedent’s brother and is a legatee, but these comments were made in arguments directed to the trial court. Argument and comments by attorneys are not evidence. See AMI Civil 3d, 101(e) (1989).
We hold that the trial court erred in admitting the blood test report into evidence because an adequate foundation was not laid. Furthermore, there has been a failure of proof as to whether or not the testimony of Mr. Cambiano was privileged. Because the report was erroneously admitted, and because we are unable to determine whether Mr. Cambiano’s testimony was privileged, we reverse and remand for further proceedings consistent with this opinion.
Jennings and Rogers, JJ., dissenting. | [
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Judith Rogers, Judge.
The appellant, Strick Lease, Inc., appeals from an order of the Pulaski County Circuit Court denying its motion for summary judgment and thereby dismissing its application for the registration of a foreign judgment rendered in Pennsylvania by confession against the appellees, M.P. Juels and Charles P. Cummings. For reversal, the appellant contends that the trial court erred in concluding that the foreign judgment was not entitled to full faith and credit based on its finding that the judgment was rendered contrary to the basic requirements of due process, including notice and the opportunity to appear, and that the rendering court did not have personal jurisdiction over the appellees. We reverse and -remand.
A brief recitation of the facts is necessary for a clear understanding of the questions thus presented in this appeal. In 1985, the appellees personally guaranteed payment to the appellant for equipment leased by their company, Transportation Service, Inc. Appellees are both residents of North Little Rock and their corporate business is conducted there. The guarantee agreements signed individually by the appellees contains the following provisions:
Section 13 Waiver of Pre-judgment Hearing. If any payment or amount or any other charge or sum which is required to be paid by Guarantor shall remain unpaid on any day when the same ought to be paid by the Guarantor, Guarantor hereby empowers any prothonotary, Clerk of Court or attorney of any court of record to appear for Guarantor in any and all actions which may be brought [including] actions to confess judgment against the Guarantor for all or part or expense specified in the Agreements then unpaid.
Section 14 Governing Law. This guarantee agreement shall be construed and interpreted in accordance with the laws of the State of Pennsylvania.
Section 15 Guarantee Agreement. Guarantor hereby submits to the jurisdiction of the Courts of the Commonwealth of Pennsylvania.
Upon default, appellant proceeded in accordance with the cognovit provision of the agreement, and on January 11, 1988, obtained a judgment by confession in the amount of $37,481 in the Court of Common Pleas in Bucks County, Pennsylvania, pursuant to the statutory law and procedure existing in that state. See Pa. R. Civ. P. §§ 2951-61 (1989). More specifically, the judgment was obtained by appellant’s attorney, Anthony L. Lamm, who filed a complaint professing to appear on behalf of the appellees for the confession of judgment in favor of the appellant. The complaint was accompanied by individual affidavits, purporting to be those of the appellees, but which were signed by Lamm, directing that judgment be entered against them.
Thereafter, appellant applied for the registration of the Pennsylvania judgment in the Pulaski County Circuit Court, and subsequently moved for summary judgment that its application be granted. The appellees resisted the application and the motion for summary judgment on grounds that they were not afforded due process, citing the absence of notice and the opportunity to appear prior to the entry of judgment in Pennsylvania, and that they had no contacts with the state of Pennsylvania sufficient to establish personal jurisdiction. Appellee Cummings filed an affidavit stating generally that he had never appeared in any Pennsylvania action, that he never authorized Lamm to appear on his behalf or confess judgment, and that the first notice he had of the Pennsylvania judgment was received when he was served with the present application for the registration of the foreign judgment.
The trial court ruled in favor of the appellees, and in its order of December 5, 1988, stated:
[U]pon consideration of the pleadings and statements of [Appellant’s] counsel, the Court finds that the foreign judgments which [Appellant] seeks to register were rendered contrary to basic constitutional requirements of due process, including notice and opportunity to appear, and the rendering court did not have jurisdiction of the person of [Appellee], Charles Cummings, or [Appellee], M.P. Juels, and [Appellant’s] Application to Register Foreign Judgment, as amended, and its Motion for Summary Judgment should be dismissed.
The Uniform Act, found at Ark. Code Ann. §§ 16-66-601 — 619 (1987), requires only that the foreign judgment be regular on its face and duly authenticated to be subject to registration. Dolin v. Dolin, 9 Ark. App. 329, 659 S.W.2d 954 (1983). Under the full faith and credit clause of the United States Constitution, Art. 4, § 1, a foreign judgment is as conclusive on collateral attack, except for defenses of fraud in the procurement or want of jurisdiction in the rendering court, as a domestic judgment would be. Celia v. Celia, 12 Ark. App. 156, 671 S. W.2d 764 (1984). These judgments are presumed valid, and an answer asserting lack of jurisdiction is not evidence of the fact and the burden of proving it is on the one attacking the foreign judgment. Dolin v. Dolin, supra.
As its first point for reversal, the appellant argues that the trial court erred in holding that the Pennsylvania judgment was rendered in violation of the appellees’ right to due process. Secondly, the appellant contends that the trial court erred in finding that the Pennsylvania Court lacked personal jurisdiction over the appellees. Particularly, it is the appellant’s contention that the appellees waived their rights to pre-judgment notice and the opportunity to defend, as well as the requirement of personal jurisdiction, as evidenced by the terms of the guarantee agreements.
As authority, appellant has referred us to the companion cases decided by the United States Supreme Court of D.H. Overmyer Co. v. Frick Co., 405 U.S. 174 (1972), and Swarb v. Lennox, 405 U.S. 191 (1972), in which the Court addressed the due process validity of cognovit provisions. In Overmyer, the Court observed that the cognovit is the ancient legal device by which the debtor consents in advance to the holder’s obtaining a judgment without notice or hearing, and possibly with the appearance, on the debtor’s behalf, of an attorney designated by the holder. 405 U.S. at 176. The Court went on to hold that a cognovit clause is not per se violative of Fourteenth Amendment due process, as due process rights to notice and hearing prior to a civil judgment are subject to waiver, provided that the waiver be voluntary, knowing, and intelligently made.
In Swarb, supra, the Court had before it the Pennsylvania statutory scheme at issue in the present case. In affirming the limited decision of the lower court, the Court declined to declare that the Pennsylvania rules and statutes were per se unconstitutional in recognition that under appropriate circumstances, a cognovit debtor may be held effectively and legally to have waived those rights he would possess if the document he signed had contained no cognovit provision. 405 U.S. at 200.
It is clear from these decisions that notice and the opportunity to appear can be waived without doing violence to the due process clause. However, it is also equally clear that the validity of cognovit provisions is governed by the facts of each particular case. Overmyer, 405 U.S. at 188; Swarb, 405 U.S. at 201.
Likewise, the requirement of personal jurisdiction, being an individual right, can, like other such rights, be waived. Insurance Corp. of Ireland, Ltd. v. Compagnie Des Bauxites De Guinee, 456 U.S. 694, 703 (1982). Accordingly, parties to a contract may agree in advance to submit to the jurisdiction of a given court, to permit notice to be served by the opposing party, or even waive notice altogether. Nat’l Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 316 (1964).
Therefore, in light of the foregoing authorities, we conclude that the trial court erred in concluding that the foreign judgment was rendered in a facially unconstitutional manner and without personal jurisdiction, inasmuch as such rights are subject to waiver. However, on the basis of the record now before us, we cannot also conclude that the waiver of these rights was “voluntary, knowing and intelligently made.” As stated in Overmyer, “[w]e do not presume acquiescence in the loss of fundamental rights.” 405 U.S. at 186, quoting Ohio Bell Tel. Co. v. Public Utilities Comm’n, 301 U.S. 292, 307 (1937).
In his response to the appellant’s motion for summary judgment, appellee asserted “that he has never consented to entry of a judgment against him in Bucks County, Pennsylvania; [and] that he has not knowingly waived his constitutional right to due process of law.” It appears that these assertions challenging the jurisdiction of the rendering court were not fully developed in this summary proceeding. When a trial record discloses a simple failure of proof, justice demands that we remand the cause to allow an opportunity to supply the defect unless it clearly appears that there can be no recovery. Ross v. Moore, 25 Ark. App. 325, 758 S.W.2d 423 (1988). Here, it is not apparent that no recovery can be had, and we believe a remand is the appropriate course in this case where such substantial rights are involved. Therefore, we reverse and remand for proceedings not inconsistent with this opinion.
REVERSED and REMANDED.
Corbin, C.J., and Cracraft, J., agree. | [
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Judith Rogers, Judge.
Appellant was convicted by a jury of kidnapping, rape, and battery in the second degree. He was sentenced to twenty years for kidnapping, a class Y felony, ten years for rape, and six years for battery in the second degree. The kidnapping and rape sentences were to run consecutively and the battery sentence was to run concurrently. On appeal, appellant argues that there was insufficient evidence to support his conviction for a class Y felony kidnapping and that the trial court abused its discretion in denying his requests to quash the jury and to declare a mistrial. We disagree and affirm.
First, appellant argues that the evidence was insufficient to support his conviction for kidnapping, a class Y felony. The test for determining sufficient proof is whether there is substantial evidence to support the verdict; on appeal, the court reviews the evidence in the light most favorable to the appellee and sustains the conviction if there is any substantial evidence to support it. Schwede v. State, 49 Ark. App. 87, 896 S.W.2d 454 (1995). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Tigue v. State, 319 Ark. 147, 889 S.W.2d 760 (1994).
Arkansas Code Annotated § 5-11-102 (Repl. 1993) provides in part:
(a) A person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty with the purpose of:
(4) Inflicting physical injury upon him, or of engaging in sexual intercourse, deviate sexual activity, or sexual contact with him.
(b) Kidnapping is a Class Y felony, except that if the defendant shows by a preponderance of the evidence that he or an accomplice voluntarily released the person restrained alive and in a safe place prior to trial, it is a Class B felony.
The record reveals that appellant followed his ex-girlfriend, Brenda Nicholas, and began ramming his truck into her car, forcing her off the road; he threw a car battery through the back window of the victim’s car to reach her; he grabbed the victim by her hair and started hitting her; he then dragged her out of her car and put her in his truck, and drove her to a country road, where he kicked, her repeatedly, and told her he was going to kill her. Appellant picked up the victim and put her back in his truck and asked if she wanted to have sex. The victim responded “whatever.” After having intercourse with her, appellant began beating her again. He eventually took the victim home but refused to take her to a doctor. Minutes after appellant left, the sheriff arrived, and Ms. Nicholas was taken to the hospital.
Appellant argues that the penalty range for the offense of kidnapping should be reduced from a class Y felony to a Class B felony because there was evidence that he had left appellant alive and in a safe place.
The State responds that the victim was not released in a safe place given the physical condition in which she was left, and argues that the only safe place that the victim could have been released was the hospital. We agree.
Ms. Nicholas testified that she was unconscious while traveling in appellant’s truck from the time he dragged her out of her car until they stopped on a country road where appellant began to beat her again. The record indicates that appellant drove the victim back to her trailer after beating her and having intercourse with her. She testified that when she viewed herself in the mirror, she requested that appellant take her to the hospital. According to Ms. Nicholas, appellant declined to assist her stat ing that the “law” would be after him. The victim testified that appellant told her that he was leaving to get his cousin to drive her to the hospital. The record reveals that Ms. Nicholas had been beaten repeatedly in the head and face. The medical evidence shows that she suffered lacerations on her face, one requiring stitches which resulted in a permanent scar; that Ms. Nicholas suffered five broken ribs, and her left eardrum was traumatically ruptured; and that Ms. Nicholas required several hours of medical treatment and hospital stay for her injuries.
Sheriff Ray Gack testified that, when he arrived at Ms. Nicholas’ home, she was covered in blood, appeared to have been severely beaten, was unsteady on her feet, and almost lunged out of the door of the house when she opened it.
It is a question of fact for the jury to decide which of the kidnapping felonies apply in a particular case. See Clark v. State, 292 Ark. 69, 727 S.W.2d 853 (1987). Based on the evidence in this case, the jury could have found that Ms. Nicholas was not left in a safe place due to her physical condition. We cannot say that the trial court erred in denying appellant’s motion.
In concluding on this point, we note that this case is unlike that of Griffin v. State, 2 Ark. App. 145, 617 S.W.2d 21 (1981). There, the victim was released a block from her house. However, there is no indication from that opinion that the victim had been harmed in anyway, which differs quite dramatically from the facts in the case at bar.
Next, appellant contends that the evidence was insufficient to sustain his conviction for second degree battery. Appellant argues that the victim was not seriously, physically injured as set forth in Ark. Code Ann. § 5-13-202(a)(l) (Repl. 1993).
Arkansas Code Annotated § 5-13-202(a)(l) provides:
A person commits battery in the second degree if:
(1) With the purpose of causing physical injury to another person, he causes serious physical injury to any person.
Arkansas Code Annotated § 5-1-102(19) (Repl. 1993) provides:
“Serious physical injury” means physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.
In the case at bar, the record indicates that the victim was hit repeatedly in the head and face with the appellant’s fist. She was also kicked repeatedly. She suffered various lacerations on her face, including a cut on her lip, a star-shaped cut on her right eyelid, and a two-inch cut on her forehead requiring stitches. The victim has a permanent scar on her forehead as a result of the two-inch cut. She also sustained numerous bruises on her chest, back, upper thighs, and her left knee. X-rays revealed that five of Ms. Nicholas’ ribs on the right side of her body were broken. Also, her left eardrum was traumatically ruptured by the beating. She remained in the emergency room for three and one half hours, and subsequently remained in the hospital for thirty-six to forty-eight hours. We cannot say that there is no substantial evidence to support appellant’s conviction for second degree battery. See Lum v. State, 281 Ark. 495, 665 S.W.2d 265 (1984).
Appellant also argues that the trial court abused its discretion in denying his motion to quash the jury when the trial judge commented on the evidence.
The record reveals that the trial judge heard loud noises before the information had been read or the jury had undergone voir dire. In response to these noises, the trial judge stated:
I believe we’re going to have to ask the people in the office in there to not talk so loud. I hate to walk into somebody’s office and tell them to not be so loud, but you know, they say your rights end where the other fellow’s nose begins and I think our nose begins at that wall, and it’s a very thin wall.
At that point, appellant moved to quash the jury claiming the remark could prejudice the jury against him because the case involved a battery charge with allegations of serious physical injuries. The trial court denied the motion.
A trial court’s decision to grant or deny a motion to quash a jury panel on the ground that it cannot be impartial will not be reversed on appeal absent a showing of a manifest abuse of that discretion. Gonzalez v. State, 32 Ark. App. 10, 794 S.W.2d 620 (1990). It is clear from the record that the judge was not commenting on the evidence, but merely stating that the occupants next door were too loud and needed to be told to be quieter. We would also point out that at the time the comment was made there was no evidence presented to the jury nor did the jury know anything about the case. Therefore, it is apparent that the trial court did not abuse its discretion.
Finally, appellant contends that the trial court erred in not granting a mistrial when the trial court commented on the competency of appellant’s counsel.
The record reflects that during Ms. Nicholas’s testimony the following occurred after Ms. Nicholas had denied pointing and threatening appellant with a gun:
Q: So you’re denying pulling the gun on him, pointing it at him and threatening to blow his brains out. Is that correct?
A: I’m denying that. Yes, I am.
Court: I assume there’s a basis for the question which will come up later.
Mr. Steele [appellant’s counsel]: Your honor, of course the witness in [sic] on cross-examination.
Court: I know, but there has to be a basis for any question asked and if one is asked for which you know there’s no factual basis for it, would be improper.
Mr. Steele: Your honor, may we approach the bench, please?
Court: Yes.
When appellant’s counsel approached, he moved for a mistrial stating that the judge’s comment would “unreservedly taint” the jury. The court inquired if counsel’s client was going to testify that she had pulled a gun on him. Counsel responded that his cross-examination was based on what his client had told him. The court said all right, go ahead. Counsel renewed his motion, and it was denied. Appellant did not request an admonition to the jury.
A mistrial is an extreme remedy that should only be resorted to 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). Also mistrial should only be granted under circumstances in which any possible prejudice cannot be removed by an admonition to the jury. Burkhart v. State, 301 Ark. 543, 785 S.W.2d 460 (1990). It does not appear from the record that the trial court had a deliberate intent to ridicule or demean counsel. It does appear that the judge was conducting the trial to ensure that the question was asked in good faith because counsel had previously asked the question three times. The record also indicates that the trial court instructed the jury to disregard anything it may have said or done which could have suggested that the jury should believe or disbelieve any witness or that the jury should reach a particular result. Therefore, we cannot say that the trial court erred in denying appellant’s motion for a mistrial.
Affirmed.
Jennings. C.J. and Pittman, J., agree. | [
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Judith Rogers, Judge.
This is an appeal from the Workers’ Compensation Commission’s decision finding that appellant had failed to prove by a preponderance of the evidence that he sustained a compensable back injury or that the subsequent surgery was reasonable and necessary medical treatment. On appeal, appellant argues that there is no substantial evidence to support the Commission’s decision. We disagree and affirm.
The record reveals that appellant worked for appellee as a cook. He had been working for two to three months when, on March 20, 1992, he allegedly slipped in a puddle of water in the walk-in cooler, striking the right side of his lower back on the corner of a wall and falling to the floor. Appellant was taken to St. Joseph’s Hospital by ambulance. He was given a drug test; x-rays were performed; and he was given a shot and released. Subsequently, appellant was seen by several doctors and on May 21, 1992, Dr. James M. Arthur performed low back surgery. Appellant filed a claim for benefits. Appellee contested the claim contending that appellant did not slip and fall.
In a workers’ compensation case, the burden rests on the claimant to establish his claim for compensation by a preponderance of the evidence. Gencorp Polymer Products v. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (1991). In determining the sufficiency of the evidence to sustain the findings of the Workers’ Compensation Commission, we review the evidence in the light most favorable to the Commission’s findings and affirm if they are supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Marcoe v. Bell Int’l, 48 Ark. App. 33, 888 S.W.2d 663 (1994). In cases where a claim is denied on the basis that a claimant failed to show entitlement to compensation by a preponderance of the evidence, the substantial evidence standard of review requires that we affirm if a substantial basis for the denial of relief is displayed by the Commission’s opinion. Brantley v. Tyson Foods, Inc., 48 Ark. App. 27, 887 S.W.2d 543 (1994). The question is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Johnson v. Riceland Foods, 47 Ark. App. 71, 884 S.W.2d 626 (1994).
Appellant argues that it is undisputed that the injury he sustained to his back was clearly related to his employment, and thus compensable. We disagree.
The record reveals that appellant was the only person to witness his fall. He testified that he slipped in a large puddle of water around the cooler which caused him to fall backward six feet and strike a wall with his back. Appellant said that he began screaming and an ambulance had to come and take him to the hospital. The record indicates that appellant was taken to the hospital and given medication and released the same day.
Russell Kinsey, the executive chef, testified that he arrived in the area where appellant had allegedly fallen and appellant was lying on the floor. He asked appellant what happened and appellant said he slipped in a puddle of water. Mr. Kinsey said that he looked around and asked “where is the water?” According to Mr. Kinsey, appellant responded that he guessed that his uniform had mopped it up. Mr. Kinsey testified that he did not see any water on the floor. On cross-examination, appellant’s counsel asked if water had ever accumulated on the floor around the cooler when it was being stocked. Mr. Kinsey replied that it did, but that the area was mopped every afternoon after deliveries and that it had been done that day before appellant’s alleged fall.
The medical records reveal that appellant had a consultation with Dr. Stuart McConkie on May 18, 1992. Dr. McConkie’s notes indicate that appellant’s past history was negative as far as back trouble was concerned. However, other medical evidence reflects that, as early as 1978, appellant had minimal joint space narrowing at L5-S1, the same location as his recent injury. The medical records also reveal that appellant had a history of spina bifida occult, a congenital anomaly of the vertebrae, and a past history of back problems at exactly the same location his recent back surgery was performed. In fact, he had a prior surgical procedure on the exact same area in 1990 because he had been involved in an automobile accident. Consequently, the record reveals that appellant failed to give. Dr. McConkie an accurate history of his back problems.
Also, it appears in the record that appellant stated that he was referred by Dr. John Wilson to see another surgeon. The medical records indicate that Dr. Wilson did not advise appellant to see a neurosurgeon and, in fact, he stated that he did not feel appellant required back surgery.
The Commission stated in its opinion that:
It is significant that claimant maintains he fell in a three or four foot puddle of water and no one was able to corroborate the existence of the large puddle of water. In fact, testimony was offered that there was not a puddle of water in the cooler. Furthermore, we are not persuaded that claimant was thrown backward approximately six feet from where he allegedly slipped before hitting a wall and falling to the ground. Also, we find that claimant’s credibility is questionable. Not only was Dr. McConkie related a faulty history, claimant either intentionally or unintentionally misrepresented at the hearing what Dr. Wilson told him concerning seeing another surgeon. A review of the record indicates that Dr. Wilson did not advise claimant to see another surgeon. In fact, Dr. Wilson clearly stated that he was of the opinion claimant would not require back surgery.
Under the circumstances of this case, we are unable to find any causal connection between appellant’s injury and his employment other than appellant’s own assertion that a fall occurred. It is clear from the Commission’s opinion that it did not find appellant’s account worthy of belief. The dissent questions the Commission’s credibility determination. However, it has been a long standing rule that it is the exclusive function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Johnson v. Rice land Foods, 47 Ark. App. 71, 884 S.W.2d 626 (1994). It is not the function of this court to weigh the evidence and determine where the preponderance of the evidence lay. Beeson v. Landcoast, 43 Ark. App. 132, 862 S.W.2d 846 (1993). In keeping with our standard of review, we conclude that the Commission’s finding that appellant was not credible was a permissible one and that the Commission’s opinion displays a substantial basis for the denial of relief. See Shaw v. Commercial Refrigeration, 36 Ark. App. 76, 818 S.W.2d 589 (1991).
Based on our decision with regard to the compensability of appellant’s back surgery, we need not address his remaining point on appeal.
Affirmed.
Cooper, Robbins, and Mayfield, JJ., dissent. | [
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Melvin Mayfield, Judge.
This appeal was originally filed in the Arkansas Supreme Court and was transferred to this court.
The appellant was given a traffic citation for violating Ark. Code Ann. § 5-65-103 (Repl. 1993), which makes it unlawful for a person who is intoxicated, or who has a blood alcohol content of 0.10% or more, to be in actual physical control of a motor vehicle.
Appellant was found guilty in the Municipal Court of Prairie Grove, Arkansas, and by a judgment dated September 15, 1993, he was fined $350, plus costs, and his driver’s license was suspended for 90 days. No period of incarceration is mentioned in the municipal court judgment, and from a presentence screening report it appears that appellant had not been convicted for DW1 within three years prior to this September 15, 1993, judgment. Therefore, under Credit v. State, 25 Ark. App. 309, 758 S.W.2d 10 (1988), it seems clear that appellant was convicted of a misdemeanor.
Appellant perfected an appeal to Washington County Circuit Court, and on December 10, 1993, a continuance was granted until March 17, 1994. On March 15, 1994, defense counsel advised the court that she had a health problem, and at counsel’s request the case was continued again, but the court advised counsel that the case would be reset within the next ten days or two weeks. It was then — as the trial judge put it — “set immediately” for March 30, 1994.
On the day set for trial, defense counsel filed another motion for continuance which stated that the appellant had gone to Iowa on his job; that the case was set for trial on Wednesday, March 30, 1994; and that defense counsel had received notice of the trial date, only two days before the trial was to be held, by telephone call from the assistant deputy prosecuting attorney. Defense counsel stated in her motion for continuance that she told the prosecutor she was on her way to a hearing and asked that the prosecutor advise the court of defense counsel’s failure to receive notice of the trial date and that the defendant was “out of pocket.” Upon returning to her office at 5:30 p.m. that day she found this message: “Judge says try case on Wednesday.”
At a hearing on Wednesday, March 30, 1994, defense counsel told the trial judge that she was not notified of the trial date until 1:20 Monday afternoon and that appellant was in Iowa working, and she had been unable to contact him. She asked for a continuance, or in the alternative, that appellant be tried in absen-tia. The trial court refused both requests, stating that the case had been continued twice at the request of the defense; that the last time it was continued defense counsel was informed that the case would be reset for trial within ten days or two weeks; and that the case was immediately reset for March 30. As to trying appellant in absentia the judge stated:
[T]he right to confront witnesses is a fundamental right guaranteed to all of our citizens. I think it would be gross error to try your client in absentia. I don’t think that’s permissible within Arkansas law or any other law, for that matter, so I’m not going to proceed in that regard. I’m dismissing the appeal.
The judge then had the bailiff call for the defendant three times, and when he did not appear the judge instructed the prosecuting attorney to prepare a precedent dismissing the appeal. An order was filed for record on April 7, 1994, which stated that the prosecutor and defense counsel appeared for trial, but the defendant “appearing not” the appeal was dismissed and the order of the lower court was reinstated.
Appellant argues on appeal that, “The trial court erred when it denied appellant’s motion for continuance for lack of proper and sufficient notice of the trial date. The court’s action denied appellant his constitutional right to due process of law.” In support, the appellant cites Goss v. Lopez, 419 U.S. 565 (1975), and Rawls v. State, 266 Ark. 919, 587 S.W.2d 602 (1979).
In Goss v. Lopez, the United States Supreme Court stated:
There are certain benchmarks to guide us, however. Mullane v. Central Hanover Trust Co., 339 U.S. 306, 70 S.Ct. 642, 94 L.Ed. 865 (1950), a case often invoked by later opinions, said that “[m]any controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.”
419 U.S. at 578-79.
In Rawls, supra, our supreme court reversed and remanded a circuit court affirmance of a municipal court conviction because appellant had not received adequate notice of his trial date. He had been convicted in the Municipal Court of Monticello on April 29, 1977, of driving while intoxicated and perfected an appeal to Drew County Circuit Court. On September 19, 1977, appellant’s case was set for trial on September 26, 1977, and appellant was advised to notify his attorney of the trial date. Neither appellant nor his attorney appeared on September 26. The docket reflected no action was taken on appellant’s case that day. On September 18,1978, the circuit court affirmed appellant’s conviction without appellant or his attorney being present. On January 17, 1979, appellant’s attorney received notice of the “call of the docket” scheduled for February 1, 1979, and appellant appeared for trial on that day. However, the judge entered an order remanding the case to municipal court upon finding that his predecessor had affirmed appellant’s conviction on September 18, 1978. On appeal, our supreme court stated:
While Ark. Stat. Ann. § 44-507 (Repl. 1964) [now Ark. Code Ann. § 16-96-508] authorizes a circuit court to affirm a judgment of a lower court if the appellant fails to appear when his case has been scheduled for trial, due process dictates that appellant be afforded proper notice and an opportunity to be heard in a proceeding involving the deprivation of life, liberty or property. Renfro v. City of Conway, 260 Ark. 852, 545 S.W.2d 69. Moreover, Ark. Stat. Ann. § 22-311 (1962 Repl) [now Ark. Code Ann. §§ 16-13-206, 207, and 209], requires that interested parties as well as their attorneys receive notice from the clerk of the court of proceedings scheduled; and that time shall be afforded counsel to prepare for trial.
We conclude that the oral notice given by the circuit court to appellant on September 19, 1977, that the case would be tried on September 26, 1977, did not comply with the requirements of Ark. Stat. Ann. § 22-311 (Repl. 1962) and the requirement of due process under the Fourteenth Amendment to the United States Constitution. See: Goss v. Lopez, 419 U.S. 565 (1975).
266 Ark. at 921-22, 587 S.W.2d at 603.
In the present case, the appellant admits that he had been granted two continuances prior to the one requested on March 30, 1994. He argues, however, that at the continuance granted on March 15, 1994, no definite trial date was set and the judge just said the case would be reset in the next ten days or two weeks. Appellant’s counsel contends that even after the case was reset for March 30, 1994, she did not receive notice of this setting until March 28, 1994, when she was notified by a telephone call from the prosecutor’s office. She argues that appellant was not properly or adequately notified of his trial date and therefore his right to due process was violated.
We do not agree. Obviously the appellant’s attorney had two days notice before the March 30 trial .date. However, she knew on March 15 that the case would be reset for a day within ten days or two weeks. Despite the fact that appellant had been given two continuancés at his attorney’s request, and despite the fact that his attorney knew a new trial setting was imminent, thé appellant went to his job in Iowa and there is no reason shown for the attorney’s stated inability to contact appellant in Iowa so that he could be present for trial on March 30.
We recognize that in the Rawls case, supra, the court held that the notice of trial setting did not comply with what is now Ark. Code Ann. § 16-13-209 (Repl. 1994) or with the requirements of due process. However, the present case is unlike the Rawls case, and is more like the case of Harris v. State, 6 Ark. App. 89, 638 S.W.2d 698 (1982), where we said, “Appellant’s attorney was certainly aware of the trial date, since he advised the court eight days prior to the trial date that he had been unable to locate his client.” In Harris we pointed out that in Rawls the appellant did not have an attorney at the time his case was set for trial, and we said that what is now Ark. Code Ann. § 16-13-209 only requires notice by the court clerk in those cases where the parties are not required by law to take notice. In the present case the appellant’s attorney was present in court when he was advised that the case would be reset for trial within ten days or two weeks. We think the statutory and due process requirements were met in this case.
Moreover, we cannot say that the trial court erred in refusing to grant appellant another continuance on March 30, 1994. The Arkansas Supreme Court set out the rules regarding a continuance in Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995) (substituted opinion) as follows: -
In order to obtain a continuance, the appellant must make a showing of good cause. A motion for a continuance is addressed to the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. The defendant has the burden of proof in demonstrating the abuse of discretion. That burden entails a showing of prejudice.
When a motion for a continuance is based on a lack of time to prepare, this court will consider the totality of the circumstances.
318 Ark. at 696-98, 890 S.W.2d at 605-06. When deciding whether a continuance should be granted, several factors should be considered, including (1) the diligence of the movant, (2) the probable effect of the testimony or evidence, and (3) the relevance of the testimony and the likelihood of procuring the evidence or witness sought. Wesley v. State, 318 Ark. 83, 883 S.W.2d 478 (1994)5 Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987).
In Cagle v. State, 47 Ark. App. 1, 882 S.W.2d 674 (1994), appellant failed to appear for trial and his attorney, who was present, moved for a continuance on the basis that appellant was working out of town. Defense counsel told the court that until the day before trial Cagle’s trial was eighth out and that he had advised his client that it would not be tried that day. The motion for continuance was denied and appellant was tried in absentia and convicted. On appeal, appellant did not challenge the circuit court’s authority to proceed in his absence but contended only that, under the particular circumstances of that case, it was an abuse of discretion for the trial court to refuse to continue the case until appellant could be present. We said:
A motion for a continuance is addressed to the sound discretion of the trial court. The motion should be granted only upon a showing of good cause and only for so long as is necessary, taking into consideration not only the request or consent of counsel, but also the public interest in prompt disposition of the case. The trial court’s action will not be reversed absent a clear abuse of discretion amounting to a denial of justice. The burden is on the appellant to establish both prejudice and an abuse of discretion.
47 Ark. App. at 2-3, 882 S.W.2d at 675 (citations omitted).
As to the appellant’s request to be tried in absentia in the present case, in Taylor v. State, 44 Ark. App. 106, 866 S.W.2d 849 (1993), the appellant had failed to appear for trial, and the circuit judge refused to hold the trial in appellant’s absence, dismissed the appeal, and ordered that the municipal court sentence be put into execution. Appellant argued that the court abused its discretion in not holding the trial despite his absence, but we did not agree. In making our decision we noted that the appellant had cited only Ark. Code Ann. § 16-89-103(b) (1987) in support of his argument and said while that statute made it permissible for a court to hold the trial for an accused misdemeanant in absentia (if the accused consents), it was not mandatory. And we cited the century-old case of Owen v. State, 38 Ark. 512 (1882), in support of our statement and pointed out that it construed the same statute as is now Ark. Code Ann. § 16-89-103(b). Also, we note that in Elms v. State, 299 Ark. 419, 773 S.W.2d 89 (1989) (the rule that an appellant is not required to be present when a plea of guilty is entered applies in misdemeanor cases where only a fine is imposed), the appellant was opposing the plea made by his counsel without appellant’s presence. Here, however, the appellant wanted to be tried in absentia.
We might end this opinion at this point, but because of the State’s footnote at the point in its brief where the Cagle case is cited, and because of the reference to certain statutes in the Rawls case, we think it might be helpful to make the following observations.
The Rawls case referred to Ark. Stat. Ann. § 44-507 (Repl. 1964), which is now Ark. Code Ann. § 16-96-508 (1987), and the State’s brief also makes reference to the same statute. The statute provides, in substance, that where a criminal case has been appealed to circuit court and the appellant fails to appear for trial, or if the appeal has not been perfected by the failure to file the required transcript, the circuit court may — subject to some exceptions — affirm the judgment appealed from and enter the same judgment in circuit court “and the same shall have the same force and effect as other judgments of the circuit court in cases of convictions or indictments for misdemeanors.”
Of course in the instant case, the circuit court simply dismissed the municipal court appeal. The extent of this distinction is not an issue in this appeal; however, we point out that in a number of cases the circuit court has only dismissed the appeal as did the court in the instant case. See Owen v. State, supra; Sheridan v. State, 239 Ark. 322, 389 S.W.2d 232 (1965); and Ottens v. State, 316 Ark. 1, 871 S.W.2d 329 (1994). And in Wilson v. C & M Used Cars, 46 Ark. App. 281, 878 S.W.2d 427 (1994), we held that the circuit court’s dismissal of the municipal court appeal “simply did away with the appeal and left the municipal court judgment valid and enforceable.” 46 Ark. App. at 286, 878 S.W.2d at 430. Although Wilson was a civil case, our supreme court has held that Inferior Ct. R. 9, which provides the method of appeal from municipal court to circuit court, is applicable to both criminal and civil cases. See Ottens v. State, supra.
Affirmed.
Cooper and Robbins, JJ., agree. | [
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Donald L. Corbin, Chief Judge.
This appeal comes to us from the Arkansas Workers’ Compensation Commission. Appellant, J.A. Riggs Tractor Company, appeals from an opinion of the full Commission finding that appellee, William Etzkorn’s, healing period had not ended and appellant was not entitled to credit for any weekly indemnity benefits paid to date against its maximum liability for permanent total disability benefits imposed by Arkansas Code Annotated Section ll-9-502(b)(l) (1987). We affirm.
Appellee was severely injured in a work-related injury on May 19,1986, when a front-end loader bucket weighing approximately 2,500 pounds fell on him. There is no dispute that appellee’s claim is compensable. The present action results from a disagreement between appellant and the Death and Permanent Total Disability Trust Fund over the extent'to which each is liable for appellee’s disability benefits. The full Commission affirmed and adopted the administrative law judge’s findings of fact and conclusions of law. The Commission found that appellee was still within his healing period and any payments made by appellant during this period were classified as temporary total disability benefits which could not be credited against the maximum permanent disability benefits for which appellant was liable. It is from this order that appellant appeals.
As its only point for reversal, appellant argues that the Commission erred in holding that it is not entitled to credit against its maximum liability all weekly indemnity benefits paid to or on behalf of appellee. The statute upon which appellant relies, Arkansas Code Annotated Section ll-9-502(b)(l) (1987), provides as follows:
(b)(1) For injuries occurring on and after March 1, 1981, the first seventy-five thousand ($75,000) of weekly benefits for death or permanent total disability shall be paid by the employer or his insurance carrier in the manner provided in this chapter.
This court addressed this issue in Sparks Regional Medical Center v. Death and Permanent Total Disability Bank Fund, 22 Ark. App. 204, 737 S.W.2d 463 (1987) and held that all weekly disability benefits paid by appellant to the date of the hearing were “temporary total disability” and as such could not be credited against the $75,000 permanent disability benefits payable by the employer before subsequent benefits became the liability of the Death and Permanent Total Disability Trust Fund as provided above in Arkansas Code Annotated Section 11-9-502(b)(1) and (b)(2) (1987). Appellant herein contends that this court should reverse Sparks or confine it to its facts, or find that the case at bar does not support a finding that any benefits paid to appellee were anything other than permanent and total disability.
Appellant argues that appellee was permanently and totally disabled as of the date of his accident and that he will probably remain so for the remainder of his life. It, therefore, argues the word “temporary” is not literally descriptive of appellee’s total disability. In support thereof, appellant alleges that the term “temporary total disability” is a creature of common law and is not included in the Workers’ Compensation Act. Although the act does not specifically refer to temporary total disability, the term has become a definite part of our compensation law with a definite meaning attributable to it. The integration of this term to our act is not unique to our .court. As stated in 2 A. Larson, The Law of Workmen’s Compensation § 57-12(a) (1989):
Although the earliest compensation acts drew no distinction between “temporary” and “permanent” disability, since they simply paid benefits during any period of actual wage loss, there evolved in America a four-way classification of disabilities, (1) temporary total, (2) temporary partial, (3) permanent partial, and (4) permanent total.
Temporary disability is determined by the extent to which a compensable injury affects a claimant’s ability to earn a livelihood. Temporary total disability is defined as that period within the healing period in which an employee suffers a total incapacity to earn wages. Arkansas State Highway and Transp. Dep’t v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period is defined as that period for healing of the injury resulting from the accident which continues until the employee is as far restored as the permanent character of the injury will permit. If the underlying condition causing the disability has become more stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). Conversely, the healing period has not ended so long as treatment is administered for the healing and alleviation of the condition. Based on the foregoing, we are unwilling to depart from the above and other decisions which have given these words their idiomatic meanings and decline to reverse or modify our decision in Sparks which applies those meanings to Arkansas Code Annotated Section 11-9-502.
Regarding the Commission’s finding that appellee’s healing period had not ended, the evidence in the case at bar reveals that appellee sustained severe fractures to his pelvic bones in the accident. He also suffered severe crushing of the tissues of the upper thighs, pelvic area, and lower abdomen as well as substantial damage to the bowel and bladder causing loss of control over his bodily functions. A colostomy was performed and a catheter inserted to alleviate these problems. Subsequently, appellee’s physicians found it necessary to amputate his left leg at the thigh. Through numerous operations, the colostomy was closed, the catheter removed, and the urethra reconnected. Appellee has become ambulatory with the use of an artificial prosthesis. The most recent entries in the record from appellee’s two primary physicians reveal that appellee was still within his healing period. Dr. Munir Zufari, his surgeon, generally stated that progress was slow and appellee still had various problems. Dr. Zufari noted that after further work with Dr. Sinclair Armstrong, appellee’s urologist, he would be in a better position to say if appellee had reached maximum rehabilitation ability. A June 29,1988, report by Dr. Armstrong stated:
This is to inform you that Mr. William Etzkorn is still in the healing period. He continues to have significant medical problems which require continued medical treatment.
The determination of when the healing period has ended is a factual determination that is to be made by the Commission, and if that determination is supported by substantial evidence it must be affirmed. Mad Butcher, Inc., 4 Ark. App. at 132, 628 S.W.2d at 586. From the evidence, we are unable to conclude that the finding of the Commission that the healing period had not ended and that appellee was still suffering temporary total disability is not supported by substantial evidence.
Affirmed.
Mayfield and Rogers, JJ., agred. | [
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George K. Cracraft, Judge.
Lenora Duckworth appeals from a judgment entered against her in the amount of $ 16,065.00. She contends that the chancellor erred in finding that she had been unjustly enriched to that extent as a result of services rendered by appellee, K.E. Poland. We agree and reverse.
It is undisputed that during 1978 appellant, one of the heirs to a piece of ancestral property, acquired all but three-eighteenths of the undivided fractional interests of her co-tenants. Although Michael Hamelin, appellant’s nephew and one of the other heirs, conveyed his interest to appellant, he was permitted to reside on the premises with his wife, Janice. At the time appellant acquired the interests of the other heirs, her stated purpose was to acquire title so that she could leave it to the Hamelin children at her death. There was evidence that she had written a will so providing. In 1983, Michael and Janice were divorced and Janice was awarded custody of the children and placed in possession of the dwelling.
In 1985, Michael and Janice Hamelin entered into a contract with appellee to remodel the dwelling at a cost of $18,000.00, and made an application for a loan at a Forrest City bank to obtain financing for the improvements. Appellee apparently completed the improvements before the bank acted on the loan. When it was determined that Michael and Janice did not have merchantable title to the property, the bank refused the loan. Appellee subsequently brought this action against Michael Hamelin on the contract, and against appellant on allegations that, as appellant was the recipient of a major portion of the benefits of his labor and material, appellee should recover from her on the theory of unjust enrichment.
The trial court found that, although appellant did not contract with appellee for the work, she was “well aware” of the improvements; that to allow her to retain the improvements by which she was unjustly enriched would be inequitable; and that she was responsible for payment of the improvements to the extent of her interest. Judgment was entered against her accordingly. On appeal, appellant argues several points for reversal. As we agree that the trial court erred in holding her liable to appellee on the theory of unjust enrichment, we do not address the other arguments.
On appeal, chancery cases are tried de novo on the record. However, we will not reverse the findings of the chancellor unless they are clearly erroneous. A finding is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been committed. RAD-Razorback Limited Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986); Johnson v. Southern Electric, Inc., 29 Ark. App. 160, 779 S.W.2d 190 (1989).
Contracts implied in law are legal fictions, created by the law to do justice, and do not rest in implied or express assent of the parties. Rather, the underlying principle is that one should not unjustly enrich himself at the expense of another. To find unjust enrichment, a party must have received something of value to which he was not entitled and which he should restore. Dews v. Halliburton Industries, Inc., 288 Ark. 532, 708 S.W.2d 67 (1986). However, there must be some operative act, intent, or situation to make the enrichment unjust and compensable. Id.; Frigillana v. Frigillana, 266 Ark. 296, 584 S.W.2d 30 (1979). The courts will imply a promise to pay for services only where they were rendered in such circumstances as authorized the party performing them to entertain a reasonable expectation of their payment by the party beneficiary. Dews v. Halliburton Industries, Inc., supra; Dunn v. Phoenix Village, Inc., 213 F. Supp. 936 (W.D. 1963).
Here, the trial court’s finding that appellant knew that the improvements were being made is not supported by any evidence of record. Appellant testified that she was aware that Michael Hamelin had made some minor improvements to the house in 1979,1980, and 1981, but she knew that the improvements were being paid for by Michael. Those improvements are not at issue here. Appellant testified that she did not know appellee, and that she had never seen him before the day of trial. She testified that she had only one conversation with appellee, by telephone in September of 1985, which was after the work had been completed and after appellee had learned that the bank would not make the loan to Michael. She stated: “I was not in Arkansas last year. I saw all of the improvements after they were done.”
Appellee testified that his dealings were had entirely with the Hamelins and that he had no contact whatsoever with appellant until the work had been completed. He stated that he assumed that Michael Hamelin owned the property, and that he had begun work before the bank acted on the Hamelins’ application for a loan on the belief that it would be accepted. “I had one telephone conversation with [appellant]. She did not ask me to do any work. I did not intend to look to [appellant] to pay me. I had no reason whatever to think she would be involved, but I feel she should pay me because she owns the house and took the house away from them.”
Under the circumstances of this case, we cannot agree that any detriment sustained by appellee was sufficient, in and of itself, to justify a determination of unjust enrichment. That detriment was not brought on under any circumstances that would authorize him to entertain a reasonable expectation that the work for which he contracted with Hamelin would be paid for by appellant. To the contrary, there was direct testimony from appellee himself that he at no time entertained such an expectation but looked only to Hamelin.
Reversed and dismissed.
Cooper and Jennings, JJ., agree. | [
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George K. Cracraft, Judge.
Jerry and Mildred Hicks appeal from a decree of the Crawford County Chancery Court quieting appellees’ title to a disputed strip of land. We find sufficient merit in one aspect of the appeal to warrant modification and affirm the decree as modified.
The parties are adjoining property owners. Appellees Flanagan own lots three and four of Block AD, Galloway Addition to the City of Alma. Appellees Smith are in possession of this property and are purchasing it from the Flanagans under an installment land contract. Appellants own lots five and eight, the first of which adjoins appellees’ property on the south. These properties were separated for at least forty years by a fence running east and west. Appellees’ property and appellants’ lot five are bound on the east by a dedicated, but unopened, alley which runs north and south. The alley lies between appellants’ lots five and eight and borders lot eight on the west. It was not disputed that appellees and their immediate predecessors considered the fence to be the correct boundary between the properties, and have exercised dominion over the disputed strip since 1946.
When appellants purchased their property in 1985, a survey established that the true boundary between the properties was approximately eleven feet north of the existing fence. When appellees Smith refused to remove the fence, appellants brought this action for an order compelling them to remove it. Appellants alleged that appellees’ fence encroached not only upon their lots, but extended into the alley owned by the city on which appellees were maintaining a barn. Appellants additionally sought an order requiring appellees to remove the encroachment from the alley. The chancellor found that appellees had acquired title as against appellants to the entire disputed strip by adverse possession, including that part located in the alley.
Appellants first contend that the chancellor erred in finding that appellees had acquired title to their property by adverse possession. In order to establish title by adverse possession, appellees had the burden of proving that they had been in possession continuously for more than seven years and that their possession was visible, notorious, distinct, exclusive, hostile, and with the intent to hold adversely against the true owner. Clark v. Clark, 4 Ark. App. 153, 632 S.W.2d 432 (1982). The proof required as to the extent of possession and dominion may vary according to the location and character of the land. It is ordinarily sufficient that the acts of ownership are of such a nature as one would exercise over his own property and would not exercise over that of another, and that the acts amount to such dominion over the land as to which it is reasonably adapted. Cooper v. Cook, 220 Ark. 344, 247 S.W.2d 957 (1952); Clark v. Clark, supra.
Appellants do not contend that appellees were not in open possession, exercising exclusive dominion over the property, but argue that appellees’ possession was without the requisite intent to hold adversely to the true owner. They first argue that appellees’ possession could not be considered adverse because on cross-examination appellees and two of their immediate predecessors testified that they had no intention of claiming anyone else’s property and intended to claim only what was their own. Appellants argue that this testimony mandates a finding that appellees’ possession was neither hostile nor under claim of right. See Terral v. Brooks, 194 Ark. 311, 108 S.W.2d 489 (1937). We disagree.
The record indicates that appellees and their predecessors had openly and visibly occupied the property up to the fence for over forty years before this litigation was commenced. Appellees’ predecessor, Mary Teague, testified that the existing fence was in the same location as the one that existed when she purchased the property in 1946, and that she continually maintained the property up to that fence. She testified that she thought that her property extended up to the fence and that she claimed to the fence. She stated that she had used the driveway located on a part of that strip during the entire period of her ownership, and that she had maintained a garden on the disputed area for several years.
Appellee Paul Flanagan testified that he purchased the property from Ms. Teague in 1963, and that the present fence is in the same location as it was when he purchased it. He stated that he thought that he owned all of the property up to the fence, and that he took care of it, mowed it, and maintained flower beds on it. Appellee Larry Smith testified that he and his wife continued to exercise dominion and control over the area after they came into possession of the property under the contract of sale with Flanagan.
Although appellees and their predecessors did state that they had no intention of taking property which did not belong to them, it was undisputed that they honestly believed that their property existed up to the fence and that they claimed ownership of it. In Rye v. Baumann, 231 Ark. 278, 329 S.W.2d 161 (1960), the supreme court noted that an honest claimant, unless previously warned, might not think to qualify his answers so as to claim what he considered to be his own, but would state that he claimed only his own, at which point his claim would disappear. In arriving at the intent of a disseisor, the court considered it “better to weigh the reasonable import of his conduct in the years preceding the litigation rather than rely on one remark made during the stress of cross-examination.” 231 Ark. at 281, 329 S.W.2d at 164. When the evidence tends to show that the possession has all the qualities of an adverse holding, it may be presumed that the possession is adverse, absent evidence to the contrary. Rossner v. Jeffery, 234 Ark. 723, 354 S.W.2d 705 (1962).
In Terral v. Brooks, supra, the court declared that where one takes possession of the land of another intending to claim only to the true boundary, that possession is not adverse, but if acting on a mistake as to the true boundary, he takes possession of the land of another believing it to be his own, the result is different. In such circumstances, the intent to retain possession under an honest belief of ownership is adverse possession. See also Barclay v. Tussey, 259 Ark. 238, 532 S.W.2d 193 (1976).
Appellants also argue that appellees’ possession could not be adverse because they and their predecessors occupied the status of grantor in possession and that their possession therefore was presumptively permissive. See Pinkert v. Polk, 220 Ark. 232, 247 S.W.2d 19 (1952). We cannot agree. While the record does reflect that prior to 1940 Ms. Annie Shull owned all four lots, there is no evidence that the present fence line was established by her before her grant to the appellants’ predecessors. The record discloses that Ms. Shull conveyed lots three and four to one J. O. Murphy in 1940, and that Murphy conveyed the lots to Mary and Carl Teague in 1946. Neither Ms. Shull nor Mr. Murphy testified. While Ms. Teague testified that the fence was in existence when she purchased the property in 1946, there is no evidence that it was built during the common ownership of Ms. Shull.
In any event, that fact, if proven, would not mandate a different result. It is a rule of general application that where a grantor remains in possession there is a presumption that he does so in subordination to his grant and not in hostility to it. There is, however, an exception to the rule where the occupancy continues unexplained for an unreasonable length of time. Under those circumstances the presumption is gradually overcome by the lapse of time. Davis v. Burford, 197 Ark. 965, 125 S.W.2d 789 (1939) (possession for twenty-three years); St. Louis Southwest Railway Co. v. Fulkerson, 111 Ark. 723, 7 S.W.2d 789 (1928) (possession for thirty-nine years); Tegarden v. Hurst, 123 Ark. 354, 185 S.W. 463 (1916) (possession for fourteen years). Here, the possession continued for a period in excess of forty years.
For the same reason, we find no merit in appellants’ argument that appellees failed in their burden of proof by not offering evidence of an intent to hold adversely by the first of their predecessors who made entry into the disputed strip. As the action of the last three owners in appellees’ chain of title had all of the qualities of an adverse holding, appellees’ holding is presumed adverse, absent evidence to the contrary. See Rossner v. Jeffery, supra.
Whether possession is adverse to the true owner is a question of fact. Sharum v. Terbieten, 241 Ark. 57, 406 S.W.2d 136(1966). Although we review proceedings in chancery cases de novo on the record, we do not reverse the decision of a chancellor unless his findings are clearly against the preponderance of the evidence. Clark v. Clark, supra. From our review of the record, we cannot conclude that the chancellor’s finding that appellees’ continued possession was with the requisite intent and under claim of right is clearly against the preponderance of the evidence.
We do agree, however, that the chancellor erred in finding that appellees had acquired title by adverse possession as against appellants to that part of the adjoining alley on which appellees’ barn is located.
Appellants sought an order requiring appellees to remove the barn. The chancellor held that, although appellees could not adversely claim the alley against the City of Alma, they could, and did, adversely possess the alley against appellants in this case. In reaching this conclusion, the chancellor relied on Town of Madison v. Bond, 133 Ark. 527, 202 S.W. 721 (1917). The chancellor’s reliance on this case is misplaced. Bond must be read in the light of its own facts, which are clearly distinguishable from those present here. For many years, our law permitted the statute of limitations to run against cities, towns, and municipalities. City of Fort Smith v. McKibbin, 41 Ark. 45 (1883). This rule was changed, however, by an act of the 1907 General Assembly. The act provided that no title or right to occupancy of streets, alleys, or public parks could be acquired by adverse possession against the rights of the public or municipalities. Ark. Code Ann. § 14-301-113 (1987). The act, however, contained a proviso that it not apply to any possession commenced prior to its enactment. In Bond, the possession of an alley was commenced in 1905 and it was determined that the 1907 act could have no application. It is now well established that possession commenced after that date can never ripen into title against the public or a municipality. Wood v. Haas, 229 Ark. 1007, 320 S.W.2d 655 (1959); City of Magnolia v. Burton, 213 Ark. 157, 209 S.W.2d 684 (1948). Here, there is no evidence that possession of the disputed tract by appellees’ predecessors commenced prior to the effective date of the act, and, therefore, Bond can have no application.
This does not mean, however, that there was error in the court’s failing to grant appellants’ prayer for an order requiring appellees to remove the obstruction from the alley. First, the City of Alma was not a party to this action. Second, it is well settled that an abutting landowner is not entitled to seek abatement of an encroachment onto a public street or alley in his own right, except on allegation and proof that he has suffered special damage as a result of the encroachment, which was not common to the public in general. Mergenschroer v. Ashley, 244 Ark. 1238, 429 S.W.2d 802 (1968); Adams v. Merchants & Planters Trust Co., 226 Ark. 88, 288 S.W.2d 35 (1956). Here, appellants proved no special damage, and the court specifically found that appellants had never intended to make any use of the alley. The existence of the barn, therefore, did not specially affect them.
The decree is modified to quiet title in appellees only to those lands described in the decree which lie on part of lots five and eight in block AD, Galloway Addition to the City of Alma, and to exclude any lands lying within the platted alley lying between those two lots. The decree is affirmed in all other respects.
Affirmed as modified.
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George K. Cracraft, Judge.
First National Bank of Roland, Oklahoma, appeals from a decision of the chancery court of Sebastian County refusing to set aside as fraudulent conveyances quitclaim deeds executed by Desno Rush. This appeal was originally filed in the Arkansas Supreme Court, which transferred the case to this court for decision. We affirm.
In 1983, Bokoshe T.V. Cable, Inc., borrowed $60,000.00 from the appellant bank. Desno Rush and Ralph Lewis were the owners of all of the stock of that corporation. The loan was secured by a security interest in the corporation’s equipment and inventory. Prior to consummation of the loan, Desno Rush submitted to the bank a financial statement, which included as assets thirteen parcels of real estate owned by Rush and his wife, Mary Anne. Although the bank prepared papers for Lewis, Rush, and their wives, to personally guarantee the corporate note, for reasons that the bank could not explain, only Desno Rush signed the guaranty agreement.
When the note became in default in August, 1984, appellant filed suit against Desno Rush, Ralph Lewis, and Bokoshe T.V. Cable, Inc., and obtained judgment in January, 1985. In December, 1984, however, Rush had executed deeds conveying his interest in the thirteen lots to his wife, Mary Anne.
Shortly after the judgment was entered in Oklahoma, it was registered in Sebastian County, Arkansas. After attempts to collect on the judgment against Desno Rush in Sebastian County were unsuccessful, this action was brought to set aside the deeds to Mary Anne, as having been made with intent to defraud Desno’s creditors.
After a trial, the chancellor found that all of the property in question had been purchased with Mary Anne’s separate funds. He found that she owned and managed the property, and that Desno had no interest therein, other than “in name only.” He further found that Mary Anne had no knowledge either of appellant’s loan to Desno, that Desno had ever represented to a potential creditor that he held an interest in her property, or that any creditor of Desno’s had ever relied upon her property when granting a loan to Desno. The chancellor then concluded:
It is the Court’s opinion from the facts, evidence and law that the [appellant] has failed to show fraud or intent to defraud, delay or hinder [appellant], a secured creditor of Desno Rush, and others, and that [appellant], even with entitlement to a presumption herein, the same has been rebutted and overcome by the testimony and evidence of the [appellees]. There was no intent on the part of either [appellee] to fraudulently convey property which rightfully and from its acquisition date belonged to Mary Anne Rush. It is understandable that Desno Rush’s name was on the property, papers and accounts, but his interest was in name only until the happening of some event to give him title by possession. Mary Anne Rush did not have and has no connection with Desno Rush’s businesses and no connection with an obligation to [appellant]. It would be highly inequitable to take her property to satisfy someone else’s claim under the facts and circumstances in this case, more so in view of the fact that there are other avenues of satisfaction unapproached by the creditor concerned.
Appellant argues that, as Desno was not only in debt but was insolvent at the time of the transfers, a conclusive presumption of fraud of creditors arose, and the chancellor erred in holding that Desno was not insolvent and that the presumption had been rebutted. The view we take of the matter makes it unnecessary for us to determine whether or not Desno was insolvent, because the presumption of fraud never arose under the facts as found by the chancellor.
This court reviews chancery cases de novo on the record. However, we do not disturb the chancellor’s findings of fact unless we find them to be clearly erroneous, giving due deference to the chancellor’s superior position to judge the credibility of the witnesses and the weight to be given their testimony. Hackworth v. First National Bank, 265 Ark. 668, 580 S.W.2d 465 (1979); Ark. R. Civ. P. 52(a). We also will affirm a decree if it appears to be correct upon the record as a whole, even though the chancellor may have given, in whole or in part, the wrong reason for the result he reached. Horton v. Koner, 12 Ark. App. 38, 671 S.W.2d 235 (1984); Frawley v. Smith, 3 Ark. App. 74, 622 S.W.2d 194 (1981). Here, although we may not fully agree with all of the reasons stated by the chancellor, we conclude that he reached the correct result in holding that the conveyances were not fraudulent as to existing creditors of Desno Rush.
Desno and Mary Anne Rush were married in 1959. Mary Anne was a Korean national and Desno Rush was a career officer serving in the United States Army in the Republic of Korea. Mary Anne was from a wealthy family and had substantial sums of money on deposit in Korean banks prior to the marriage. Desno returned to the United States in 1971. At the time Mary Anne and their children joined him in Fort Smith, she transferred between $70,000.00 and $90,000.00 from her Korean bank to a bank in Fort Smith. She controlled this money and used part of it to begin purchasing various rental properties. She continued to use these separate funds, along with subsequent rental income, to purchase the remainder of the thirteen lots in question. None of Desno’s separate money went toward these acquisitions. The family’s living expenses were paid with Desno’s retirement income and Mary Anne’s earnings from other employment.
Mary Anne testified that she was afraid that being an Asian female would cause people to take advantage of her, and that she had been advised by an attorney to take title to the property with her husband jointly, which she did. She also testified that, in order to assume loans on the properties, lending institutions required her to have Desno sign the notes and mortgages. There was no evidence of any intention by either spouse that Desno acquire any present interest in Mary Anne’s property. Mary Anne testified that she maintained complete control over the property, collected the rents, and made all arrangements with regard to it. Desno went his separate way and engaged in entirely different business pursuits. Mary Anne had specifically instructed Desno not to use her property to borrow money, and he had promised her that he never had and never would. She knew nothing about his cable television business, was not aware of the loan made in Oklahoma, and had no knowledge that the suit had been filed against Desno or that judgment had been entered.
Mary Anne testified that as early as 1981 she had demanded that Desno convey his interest in the lots to her and that she had threatened to divorce him if he did not do so. She testified that they were having marital difficulties and that he had promised to execute the conveyances several times before the Oklahoma problems arose. Desno testified that Mary Anne had insisted on the conveyances and that he had conveyed the property to her solely in exchange for her agreement not to divorce him or expel him from the house.
Our law of fraudulent conveyances is well settled. When a financially embarrassed debtor conveys his property to a near relative or member of his household, the conveyance must be looked upon with suspicion and scrutinized with care. If the evidence shows the conveyance to be voluntary, it is prima facie fraudulent as to existing creditors. If the debtor is insolvent and unable to pay his debts, the presumption that the conveyance is fraudulent as to antecedent creditors is conclusive. Brady v. Irby, 101 Ark. 573, 142 S.W. 1224 (1912); Rudy v. Austin, 56 Ark. 69, 19 S.W. 111 (1892).
Not every conveyance from an insolvent husband to his wife or other member of his family is deemed fraudulent, however. There also must be a showing of some injury to the person complaining; the creditor must show that his debtor has disposed of property that might otherwise have been subjected to the satisfaction of his debt. McCown v. Taylor, 186 Ark. 273, 53 S.W.2d 434 (1932); Mente & Co., Inc. v. Westbrook, 181 Ark. 96, 24 S.W.2d 976 (1930); Quachita Electric Cooperative Corp. v. Evans-St. Clair, 12 Ark. App. 171, 672 S.W.2d 660 (1984). Therefore, if Desno’s interest in the thirteen lots was not one that could have been subjected to the payments of his debts, the conveyances would not be fraudulent.
Ordinarily, when property is purchased in the name of one person with money furnished by another, a resulting trust arises in favor of the person furnishing the purchase money. Waller v. Waller, 15 Ark. App. 336, 693 S.W.2d 61 (1985); Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981); Restatement (Second) of Trusts § 440 (1959). Under such circumstances, the person furnishing the consideration for the purchase is said to have all of the beneficial or equitable interest in the property, with the person into whose name the property was transferred having only bare, legal title. Subject to certain exceptions not applicable here, the trustee’s interest is not sufficient to allow a personal creditor of the trustee to obtain satisfaction of his claim out of the trust property. See G. Bogert, The Law of Trusts and Trustees, § 466 (rev. 2ded. 1977); 76 Am. Jur. 2d Trusts § 192 (1975).
In Seib’s Hatcheries v. Lindley, 111 F. Supp. 705 (W.D. Ark. 1953), relied upon by appellee, a number of transfers from a judgment debtor to his wife were sought to be set aside as fraudulent as to creditors. One such transfer involved assets that the court found to have been purchased by the husband with funds provided entirely by his wife. The court, citing Jenkins v. Smith, 170 Ark. 806, 281 S.W. 377 (1926), and other Arkansas decisions, applied the principle that, when a husband takes title to property purchased with his wife’s money, the wife ordinarily becomes the equitable owner of such property. The court concluded:
The transfers by the defendant, F.M. Lindley, to his wife, Mrs. Willie Lindley, of the Illinois Central Railroad Company and the Southwest Line Company note and mortgage, were not voluntary transfers. Mrs. Willie Lind-ley used her own money to purchase these items, and F.M. Lindley acted merely as her agent in purchasing them. Ms. Lindley paid a good and valuable consideration and was at all times the equitable owner; F.M. Lindley at no time had more than a bare, legal title to these two items. Therefore, these two transfers were not fraudulent.
Sieb’s Hatcheries, 111 F. Supp. at 717 (emphasis added). See Hall v. Weeks, 214 Ark. 703, 217 S.W.2d 828 (1949); Jenkins v. Smith, supra. See also 37 C.J.S. Fraudulent Conveyances § 170 (1943).
The fact that title to property is taken in spouses’ joint names does not necessarily alter the result. When property is taken in the joint names of husband and wife, and the consideration has been furnished by one of them, there is a presumption of a gift to the other from the one furnishing the consideration. Jones v. Wright, 230 Ark. 567, 323 S.W.2d 932 (1959). This presumption, although a strong one, may be overcome by clear and convincing proof that no such gift was intended. Lofton v. Lofton, 23 Ark. App. 203, 745 S.W.2d 635 (1988); Lyle v. Lyle, 15 Ark. App. 202, 691 S.W.2d 188 (1985). Clear and convincing evidence is evidence by a credible witness whose memory of the facts about which he testifies is distinct, whose narration of the details is exact and in due order, and whose testimony is so direct, weighty, and convincing as to enable the factfinder to come to a clear conviction, without hesitance, of the truth of the.facts related. It is simply that degree of proof that will produce in the trier of fact a firm conviction of the allegations sought to be established. Our test on review is not whether we are convinced that there was clear and convincing evidence to support the trial judge’s finding, but whether we can say that the finding is clearly erroneous. Akin v. First National Bank, 25 Ark. App. 341, 758 S.W.2d 14 (1988).
Here, the only testimony with regard to these factual matters was given by Mary Anne and Desno Rush. Although the testimony of an interested party is never considered uncontra-dicted or uncontroverted, this does not mean that the trial court must reject the uncorroborated testimony of an interested witness when it finds the testimony to be worthy of belief. Norman v. Norman, 268 Ark. 842, 596 S.W.2d 361 (Ark. App. 1980).
Mary Anne testified clearly and unequivocally that the money used to purchase the lots was her separate property, and that none of the property was purchased with monies belonging to Desno. She stated that she had been advised by an attorney to take the title in both names to enable her to escape problems that she envisioned would result due to her Asian background. She testified that Desno had promised her that he would never use that property to obtain a loan. She also testified that she knew nothing about the business of the cable company, the loan from appellant, or the lawsuit in Oklahoma. Desno confirmed that she was without that knowledge, and he made no claim to having any interest in Mary Anne’s property.
The chancellor found this testimony to be credible and true, and that Mary Anne owned the property, that Desno’s interest therein was “in name only,” and that Desno was motivated to convey his bare legal title by fear of divorce, rather than with intent to defraud his creditors. From our de novo review, we cannot conclude that the findings of the trial court are clearly erroneous. In light of those findings, we conclude that the correct result was reached.
Affirmed.
Corbin, C.J., and Jennings, J., agree.
On recusal of Judge Mayfield, this case was resubmitted to the present members of this Division and assigned to this writer on February 21,1990. The tape recording of the oral argument was available to all members of the Division. | [
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James R. Cooper, Judge.
On July 15,1987, the appellants executed a promissory note to the appellee in the original principal amount of $62,180.12, giving a security interest in equipment used in the appellants’ business, The Image Factory, Inc. The security agreement required the appellee to give five days’ written notice before sale of the collateral in the event of default and repossession. In October 1987, the note was in default, and the appellants voluntarily surrendered possession of the equipment to the appellee. The parties kept in close contact with each other, and both attempted to secure a purchaser of the equipment. In February 1988, the appellee accepted an offer in the amount of $50,000.00 from Filmed Events Network. Although the appellee contacted the appellant Robin Craft and obtained her consent to the sale, the appellant Cary Pollack was not contacted, and no written notice was sent to either of the appellants. The appellee subsequently sued the appellants for the deficiency. After a bench trial on February 6,1989, the trial court found that the sale of the collateral had been conducted in a commercially reasonable manner and entered judgment for the appellee in the amount of $14,871.48, plus costs. From that decision, comes this appeal.
For reversal, the appellants contend that the trial court erred in finding that the sale of the collateral was conducted in a commercially reasonable manner and that, because the conduct of the sale was commercially unreasonable, the appellee was not entitled to a deficiency judgment. We affirm in part and reverse in part.
The parties’ security agreement provided that:
If any of the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, no notice of sale or other disposition shall be given by Bank to Borrower. Otherwise Bank will give Borrower prior written notice of the time and place of any public sale or of the date after which any private sale or other intended disposition is to be made, by mailing such notice postage prepaid by Certified or Registered Mail, to the address of Borrower shown at the beginning of this Agreement at least five (5) days before the day of the sale or disposition.
At trial, Jean Blackwood, vice president and commercial loan officer for Pulaski Bank, testified that, on February 1,1988, Phillip Moore, with Filmed Events Network, contacted her about the collateral. Ms. Blackwood stated that he looked at the equipment, called her back the next day, and made an offer of $45,000.00. Ms. Blackwood refused this offer, and Mr. Moore made another offer of $50,000.00. She testified that she informed him that she would have to wait until the next day to give him an answer and that she immediately called Ms. Craft to inform her about the $50,000.00 offer; Ms. Craft told her that the appellant, Mr. Pollack, was out of town and that there was no way to reach him but that he would be calling Ms. Craft later. She testified that Ms. Craft told her that she (Ms. Craft) was trying to get in touch with another potential purchaser. Ms. Blackwood stated that she called Ms. Craft the next morning to see if Ms. Craft had been able to contact anyone, and was informed that Ms. Craft had not been able to do so. Ms. Blackwood stated that Ms. Craft told her, if she (Ms. Blackwood) had not heard from her within an hour, to go ahead and accept the offer. Ms. Blackwood testified that she waited two hours and then called Ms. Craft back; at that time, Ms. Craft told her to go ahead and sell the equipment to Filmed Events Network. Ms. Blackwood testified that, immediately thereafter, Mr. Moore called her; she accepted his offer and told him the papers would be ready the next day. Ms. Blackwood stated that, later that same afternoon, Ms. Craft called and told her that someone else was willing to purchase the equipment for as much as $70,000.00. Ms. Blackwood stated that she told Ms. Craft that she did not believe the appellee could break its oral agreement with Filmed Events Network, and that Ms. Black-wood met the next morning with the president of the bank, the bank’s attorney, and another vice president of the appellee. Ms. Blackwood testified, “[i]t was decided that, although the other offer was more and would pay us off, that we could not go back on our word. I mean, we had said we would do something, and we were liable for that.” Ms. Blackwood admitted that the gentleman that had contacted Ms. Craft also called her at the bank. Ms. Blackwood also admitted that the offer from Filmed Events Network was simply an oral offer and that the appellants were not given written notice of the sale.
Ms. Craft testified that Ms. Blackwood had called her and said that she had an offer that was good for twenty-four hours for $50,000.00 from Filmed Events Network. She stated that Charles Friedman contacted her on the same day that Ms. Blackwood had told her about the other offer. Ms. Craft testified as follows:
Q. Was there ever a monetary figure discussed as to how much Mr. Freidman would purchase the collateral for?
A. Yes, there was. I told him that I had just talked to Jean a few hours before and there had been — an offer had been made for $50,000, which she was going to accept or had accepted. And I didn’t know at that point, but he told me then — he said, “I can go as high as 70, if that makes any difference. If you can get them to talk to me, I could go as high as 70,000.” I told him that the balance owed on the equipment was 63 and that he could get it for 63, around in there, because we weren’t interested in making a profit on the system. We just wanted the bank paid off.
Q. Do you have personal knowledge whether or not Mr. Freidman called the bank and communicated his offer to them?
A. I talked to him two or three times that day. He called back at one point that afternoon and said he had contacted the bank himself, and he had spoken to a man in the loan department — he didn’t know who it was that he talked to — and the person told him she knows that this equipment has already been sold and that, “We wouldn’t even discuss it. It’s a done deal,” more or less.
Mr. Pollack testified that the appellee had represented to him that he would be involved in the sale or disposition of the collateral and would have an opportunity to discuss offers because he had the most knowledge about the value of the equipment.
Charles Friedman testified that he communicated his willingness to pay up to $70,000.00 for the equipment to the appellee and was informed that the appellee had a verbal commitment with another company and would not deal with him.
At the conclusion of trial, the circuit judge stated:
I think the provision for the notification does not cover the situation when they are in constant contact with the debtor as they were here. That is the intent to let them know what is going on. Make sure the debtor knows what you’re doing. They’re in almost daily contact with the debtor and conferring about what is going on about the sale. It’s kind of silly to say, “We are letting you know what is going on. We are sending a five-day day notice,” especially when the offer is in hand, as you told me here today.
The circuit court entered judgment for the appellee and stated:
3. In February 1988, the [appellee] received an oral offer to purchase the collateral for $50,000.00. Prior to accepting the offer, the [appellee’s] officer, Jean Blackwood, telephoned the [appellant], Robin Craft (wife of the [appellant], Cary Pollack), and informed her of the offer. The parties concurred that the offer was the highest they had received so far and should be accepted.
4. After the [appellee] accepted the offer, the [appellants] were contacted by one Charles Israel Freedman [sic] who claimed he would be willing to purchase the collateral for more than $50,000.00. Having already accepted the previous offer of $50,000.00, the [appel-lee] was unable to sell the collateral to Mr. Freedman [sic].
5. All aspects of the sale of the collateral were commercially reasonable as required by Arkansas Code Annotated section 4-9-504. The provision contained within the security agreement requiring the mailing of written notice five days before the sale did not apply due to the constant communication between the parties regarding the sale of the collateral.
On appeal, the appellants argue that, since no written notice of the sale was provided, the appellee did not conduct the sale of the collateral in a commercially reasonable manner as provided in Ark. Code Ann. Section 4-9-504(3) (1987). They rely on McIlroy Bank & Trust v. Seven Day Builders of Arkansas, Inc., 1 Ark. App. 121, 613 S.W.2d 837 (1981), for their assertion that the appellee was required to give them written notice of the sale, and further, they argue that the security agreement itself provided that they were to receive at least five days’ written notice of the sale. The appellee correctly argues that Mcllroy Bank & Trust dealt with Ark. Code Ann. Section 4-9-505 (former Ark. Stat. Ann. Section 85-9-505 (Supp. 1979)) and does not apply here. The appellee contends that the language of Ark. Code Ann. Section 4-9-504(3) does not require the secured party to send written notice to the debtors and does not proscribe notification by telephone. They also argue that, even if written notice was required, the appellants waived that right by their post-default conduct, i.e., their close contact with the bank in their efforts to secure a purchaser and Ms. Craft’s statement to Ms. Blackwood to go ahead and accept Filmed Events Network’s offer.
Arkansas Code Annotated Section 4-9-504(3) (1987) provides in pertinent part:
Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he had not signed after default a statement renouncing or modifying his right to notification of sale.
See also Anglin v. Chrysler Credit Corp., 27 Ark. App. 173, 175, 768 S.W.2d 44, 45 (1989). In the case at bar, there was no evidence that the appellants signed after default a statement renouncing or modifying their right to notification of sale.
In their treatise, Uniform Commercial Code, James White and Robert Summers note that:
For a private sale of collateral that is neither perishable nor threatens to decline speedily in value, nor is customarily sold on a recognized market, the creditor must inform the debtor of “the time after which any private sale or other intended disposition is to be made * * For such public sales, 9-504 requires different information: “the time and place of any public sale * *
J. White & R. Summers, Uniform Commercial Code Section 27-12, at 600 (3d ed. 1988). The distinction between private sale and public sale was recognized by the Arkansas Supreme Court in Barker v. Horn, 245 Ark. 315, 316, 432 S.W.2d 21, 22 (1968), where the Court stated that, although the statute requires notice of the time and place of public sale, only reasonable notification of the time after which a private sale will be made is required. In Womack v. First State Bank of Calico Rock, 21 Ark. App. 33, 728 S.W.2d 194 (1987), we stated, “[i]t seems to be generally understood that when the debtor was not given written notice of the time and place of the sale, the sale was not conducted according to the provisions of the Code.” 21 Ark. App. at 39, 728 S.W.2d at 197.
In Barker v.Horn, 245 Ark. 315, 432 S.W.2d 21 (1968),the Court held that reasonable notice was not provided where oral notice of sale was given without any specification as to the time of sale. The Court did not specifically approve of oral notice and stated:
Thus, there was no evidence upon which to base any finding that notice was given. There is no contention that such notice was not required in this case. The statute requires notice of the time and place of public sale. While only reasonable notification of the time after which a private sale will be made is required, appellee’s oral notice was of a sale to the highest bidder without specification of any time. For this reason, it cannot be said to constitute reasonable notice.
245 Ark. at 316, 432 S.W.2d at 22.
We believe that Section 4-9-504(3) implies that written notice must be sent to the debtor and specifically requires a writing, signed by the debtor after default, before the debtor’s right to such notice may be modified or renounced. It is apparent that the circuit judge considered that the appellants were es-topped from relying on the defense of lack of written notice because Ms. Craft was informed of the proposed sale of the collateral and agreed that Mr. Moore’s offer should be accepted. The situation is similar to that presented in Wheeless v. Eudora Bank, 256 Ark. 644, 509 S.W.2d 532 (1974), where the creditor maintained that the appellant debtor had acquiesced in a repossession and subsequent sale of an automobile; the debtor, however, testified that no one had discussed the sale with him at any time and that he had not consented to the procedure. The bank’s officer testified that he had informed the debtor in advance that the bank was going to repossess the automobile and sell it but admitted that he had mentioned no specific date. The Court reversed, holding that the trial court erred in ruling that the appellant debtor was estopped to assert lack of notice as a defense and stated:
Appellee admits it did not comply with the notice requirement but asserts that appellant had prior knowledge of the sale which constituted a waiver of his right to notice and that, having such knowledge, he was estopped to claim lack of notice as a defense. The testimony of appellee’s vice president, Arnold, was in direct conflict with that of appellant as to whether appellant was told of the sale, and signed over the title before or after the sale occurred. Appellee also contends this was a private sale and appellant’s statement that he knew the car had been repossessed and his surrender of the keys to employees of Eudora Motor Company amounted to an admission he had notice that after that time the car was subject to private sale. The notice provision of Ark. Stat. Ann. Section 85-9-504 requires more than this. Knowledge of repossession does not equate with notice of sale, nor does knowledge that an automobile will eventually be sold. The debtor is entitled to notification of a specific date after which the creditor intends to dispose of the property. This would provide the debtor a fixed period within which to protect himself from an inadequate sale price in any manner he saw fit. Nelson v. Monarch Investment Plan of Henderson, Inc., 452 S.W.2d 375, 7 UCC Rep. Serv. 394 (Ky. March 27, 1970). Therefore, the determination of whether appellant had prior knowledge of the sale and whether that knowledge would estop him from asserting lack of notice as a defense must be made on the basis of the conflicting testimony of appellant and Arnold.
We are committed to the doctrine that, since estoppel bars the truth to the contrary, the party asserting it must prove it strictly, there must be certainty to every intent, the facts constituting it must not be taken by argument or inference and nothing can be supplied by intendment. Ford Motor Credit Co. v. Exchange Bank, 251 Ark. 881, 476 S.W.2d 208; McFaddin v. Bell, 168 Ark. 826, 272 S.W. 62. The evidence supporting the claim of estoppel in this case is certainly not free from argument. The trial court erred in ruling that appellant was estopped to assert lack of notice as a defense.
256 Ark. at 648, 509 S.W.2d at 534-35.
In the case at bar, we agree with the trial judge that Ms. Craft is estopped to assert lack of written notice as a defense. Estoppel is a doctrine which involves both, not just one, of the parties; the party claiming estoppel must prove he relied in good faith on some act or failure to act by the other party and that, in reliance on that act, he changed his position to his detriment. Worth v. Civil Serv. Comm’n, 294 Ark. 643, 646, 746 S.W.2d 364, 366 (1988). The evidence shows that Ms. Craft was fully apprised of Filmed Events Network’s offer, that she told Ms. Blackwood to accept it, and that, in reliance on her statement to accept the offer, appellee did so. The trial judge did not err in finding that the requirement of written notice did not apply to Ms. Craft.
However, the strict proof necessary to show estoppel is lacking with respect to Mr. Pollack. Spouses are not agents for one another merely by virtue of the marital relationship, see Langston v. Langston, 3 Ark. App. 286, 625 S.W.2d 554 (1981), and the appellee clearly failed to prove that Ms. Craft had the authority to renounce Mr. Pollack’s right to written notice in his absence. Under these circumstances, we do not think that the appellee could reasonably rely on Ms. Craft’s actions insofar as Mr. Pollack’s rights are concerned, and we hold that the circuit judge erred in finding that the security agreement’s requirement of written notice before sale did not apply to Mr. Pollack.
Whether a sale of collateral was conducted in a commercially reasonable manner is essentially a question of fact. Farmers and Merchants Bank v. Barnes, 17 Ark. App. 139, 705 S.W.2d 450 (1986). Because the evidence supports a finding that Ms. Craft was estopped to assert lack of written notice of sale as a defense, we hold that the circuit judge’s finding that the sale of the collateral was conducted in a commercially reasonable manner is not clearly against the preponderance of the evidence with respect to Ms. Craft. However, because there is no evidence to show that Mr. Pollack was bound by Ms. Craft’s actions or was otherwise estopped to assert lack of notice, we hold that the trial court erred in finding the sale to be commercially reasonable with respect to Mr. Pollack in the absence of written notice of sale.
The appellants next argue that, because the sale of the collateral was not conducted in a commercially reasonable manner, the trial court erred in entering a deficiency judgment. We need not address this issue with respect to Ms. Craft, because we have held that the sale was conducted in a commercially reasonable manner insofar as her rights are concerned. However, it is clear, in light of First State Bank of Morrilton v. Hallett, 291 Ark. 37, 722 S.W.2d 555 (1987), that the appellee is not entitled to a deficiency judgment against Mr. Pollack. In First State Bank of Morrilton, 291 Ark. at 41-42, 722 S.W.2d at 556-57, the Court ruled that, when a creditor repossesses collateral and sells it without sending proper notice to the debtor as required by the Uniform Commercial Code, the creditor is not entitled to a deficiency judgment. “When the code provisions have delineated the guidelines and procedures governing statutorily created liability, then those requirements must be consistently adhered to when that liability is determined.” First State Bank of Morrilton, 291 Ark. at 41, 722 S.W.2d at 557. “If the secured creditor wishes a deficiency judgment he must obey the law. If he does not obey the law, he may not have his deficiency judgment.” First State Bank of Morrilton, 291 Ark. at 41, 722 S.W.2d at 557, quoting Atlas Thrift Co. v. Horan, 27 Cal. App. 3d 999, 104 Cal. Rptr. 315, 321 (1972).
Affirmed in part; reversed in part.
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Per Curiam.
The Arkansas AFL-CIO has filed a motion for permission to file an amicus curiae brief in the above styled case. Rule 19 of the Rules of the Arkansas Supreme Court and Court of Appeals provides that a motion to file an amicus curiae brief should state the reasons why such a brief is thought to be necessary. Because the AFL-CIO motion filed in the instant case does not conform to the above stated requirement of Rule 19, the motion is denied.
Mayfield, J., concurs.
Jennings, J., dissents. | [
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James R. Cooper, Judge.
The appellant in this workers’ compensation case injured his back while getting out of his auto in the employer’s parking lot five minutes before he was scheduled to begin work. The Workers’ Compensation Commission found that the appellant failed to prove that the injury arose out of his employment, and denied benefits. From that decision, comes this appeal.
For reversal, the appellant contends that the Commission erred in finding that his injury did not arise out of and in the course of his employment. We affirm.
The parties stipulated that the appellant was injured in the employer’s parking lot, and that the employee/employer relationship existed at the time of the injury. The appellant testified that employees were required to park behind the restaurant near the alleyway. He stated that he parked his car in this lot five minutes before work was to begin, turned off the ignition, opened the car door, placed his left foot on the ground, turned to get out of the car, and “felt something pop” in his back. Finally, he stated that there was nothing different about the way he got out of the car when he was injured, but that he got out of the car the same way he always had.
The claimant in a workers’ compensation case must prove that the injury he sustained arose during the course of his employment, and that the injury arose out of his employment. Ark. Code Ann. § 11-9-401 (1987). The appellant in the case at bar argues that he met his burden of proving that his injury arose out of and in the course of his employment under the “premises exception” to the going and coming rule. We do not agree.
The going and coming rule ordinarily precludes recovery for an injury sustained while the employee is going to or returning from his place of employment. Bales v. Service Club No. 1, 208 Ark. 692, 187 S.W.2d 321 (1945). The rationale behind the rule is that an employee is not within the course of his employment while traveling to or from his job. Brooks v. Wage, 242 Ark. 486, 414 S.W.2d 100 (1967). Although an exception to the going and coming rule may operate to place an employee traveling to or from work within the course of his employment, id.; see generally City of Sherwood v. Lowe, 4 Ark. App. 161, 628 S.W.2d 610 (1982), it does not follow that the employee’s injury is therefore compensable, because the employee must still show that the injury arose out of his employment. See Ark. Code Ann. § 22-9-401, supra.
A similar issue arose in Neale v. Weaver, 60 Idaho 41, 88 P. 2d 522 (1939), where the appellant argued that the accident ipso facto arose out of and in the course of his employment because it occurred on his employer’s premises. The Neale Court responded to that argument as follows:
It is true numerous cases have made the general statement to that effect, but on a careful examination and analysis of these cases we find there were in all an additional feature showing a causal connection between the employment or the condition of the place or means or appliance furnished, or under the control of the employer, directly or indirectly and at least to some extent, however slight, contributing to the accident, or tying it into or with the employment, which, in addition to the employee being on the premises of the employer at the time of the accident, constituted a sufficient make-weight to tip the scales and justifiably support the conclusion that the accident arose in the course of and out of the employment.
Neale, 88 P.2d at 524; see Annot., 159 A.L.R. 1395 (1945). An examination of Arkansas cases involving the going and coming rule likewise reveals a causal connection between the employ ment, or the condition of the place, means, or appliance furnished or controlled by the employer, to the claimant’s accident. In Davis v. Chemical Construction Co., 232 Ark. 50, 334 S.W.2d 697 (1960), the claimant’s employment required him to travel one mile in eighteen minutes in order to clear a “critical area,” and it was not unusual for employees to catch rides on trucks belonging to subcontractors. These employment conditions contributed to the claimant’s injury when he caught his foot and fell while getting off a truck on which he had ridden to the parking area. Likewise, in Bales v. Service Club No. 1, 208 Ark. 692, 187 S.W.2d 321 (1945), there was a causal connection between the accident, in which the employee was killed after slipping on an icy sidewalk in front of her workplace, and a condition of a place under the employer’s control, because, as the Bales Court noted, it was the employer’s duty to keep the sidewalk clear of ice.
While we agree with the appellant that this case falls within the premises exception to the going and coming rule, see Davis v. Chemical Construction Co., 232 Ark. 50, 334 S.W.2d 697 (1960), we think that the appellant was nevertheless required to prove that his injury arose out of his employment.
The phrase “arising out of the employment” refers to the origin or cause of the accident, and, in order to arise out of the employment, an injury must be “a natural and probable consequence or incident of the employment and a natural result of one of its risks.” J. & G. Cabinets v. Hennington, 269 Ark. 789, 793, 600 S.W.2d 916, 918 (Ark. App. 1980). The appellant in the case at bar was employed as a dishwasher, and there is no evidence that either the circumstances of his employment or the condition of the employer’s premises contributed to his back injury. Nor can it be said that the appellant’s employment required him to be in a particular place and thus brought him within range of an external force or event which caused his injury: there is no suggestion in the record that the appellant’s surroundings had any influence on his injury, and it appears that he could have injured his back in this manner any time and any place that he got out of his automobile.
See Martin v. Unified School District No. 233, 5 Kan. App. 2d 298, 615 P.2d 168 (1980). Under the circumstances of this case, we are unable to find any causal connection between the injury and the employment other than the bare fact that it occurred in the employer’s parking lot, and we hold that the Commission did not err in finding that he failed to prove that his injury arose out of his employment.
Affirmed.
Corbin, C.J., and Cracraft, J., agree. | [
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John E. Jennings, Judge.
Appellant, Bienuenido Crespo, was charged in Sebastian County Circuit Court with burglary and aggravated robbery. The jury found Crespo guilty of both offenses, and also made a specific finding that he had been armed with a deadly weapon. In accordance with the jury verdicts, Crespo was sentenced to five years imprisonment for the burglary and twelve years for the aggravated robbery. In addition, the court applied the sentencing provision of Ark. Code Ann. § 16-90-121 (1987), which imposes a minimum of ten years to be served without parole when a person is found guilty of a felony involving the use of a deadly weapon. On appeal, Crespo contends that the trial court erred in instructing the jury on the use of a deadly weapon. We disagree and affirm.
AMCI6001 is the jury instruction regarding use of a deadly weapon, and it is based on Ark. Code Ann. § 16-90-121. That section provides:
Any person who is found guilty of or pleads guilty to a felony involving the use of a deadly weapon, whether or not an element of the crime, shall be sentenced to serve a minimum of ten (10) years in the state prison without parole but subject to reduction by meritorious good-time credit.
Appellant argues that this section covers an action that was already an element of aggravated robbery as defined in Ark. Code Ann. § 5-12-103(a)(1). Appellant seems to argue that aggravated robbery is already an “enhancement provision” applied to robbery and imposed for the use of a deadly weapon, so that to apply further “enhancement” under § 16-90-121 for the same use of the same deadly weapon impermissibly subjects appellant to “double jeopardy.” For support, appellant relies primarily on Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747 (1980).
Busic dealt with the application of federal enhancement statutes, and turned upon the failure of Congress to make clear its intent regarding the application of 18 U.S.C. § 924(c) to analogous enhancement provisions in pre-existing statutes defining federal crimes. Unlike the intent of Congress in enacting 18 U.S.C. § 924(c) as found in Busic, the intent of the Arkansas State Legislature in passing § 16-90-121 is clear. That section plainly states that it is to apply to one found guilty of a felony involving use of a deadly weapon whether or not such use is an element of the crime. The section thus applies to aggravated robbery, and provides that the sentence will be a minimum of ten years served without parole. Here, appellant was sentenced to twelve years on the aggravated robbery charge and an additional five years on the burglary charge. The application of § 16-90-121 does not impose an additional sentence, but merely precludes the possibility of Crespo being eligible for parole before serving ten years, subject to reduction for meritorious good time.
In Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673 (1983), the Supreme Court addressed a situation similar to that presented here. The Court examined a Missouri statute which imposed an additional three year term of imprisonment for the commission of a felony with a deadly weapon. In rejecting the Missouri Supreme Court’s finding that such a provision violated the Double Jeopardy Clause, the Court stated:
This view manifests a misreading of our cases on the meaning of the Double Jeopardy Clause of the Fifth Amendment; we need hardly go so far as suggested to decide that a legislature constitutionally can prescribe cumulative punishments for violation of its first-degree robbery statute and its armed criminal action statute.
* * *
With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.
* * *
Here, the Missouri Legislature has made its intent crystal clear. Legislatures, not courts, prescribe the scope of punishments.
Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the same conduct under Blockburger, a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court may impose cumulative punishment under such statutes in a single trial.
It is clear that the application of Ark. Code Ann. § 16-90-121 to one convicted of aggravated robbery does not constitute double jeopardy. The trial court did not err in giving AMCI6001 to the jury.
Affirmed.
Cracraft and Mayfield, JJ., agree. | [
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Melvin Mayfield, Judge.
This is an appeal from the Workers’ Compensation Commission. At the hearing before the administrative law judge, it was stipulated that appellant sustained a compensable back injury on July 19, 1982, and that benefits had been and were continuing to be paid for that injury. The issue was whether the claimant was entitled to medical benefits and temporary total disability for each of three subsequent incidents which occurred in 1986.
The first of these incidents occurred about 9:00 a.m. on January 13, 1986. Appellant testified he got out of the bathtub and, while drying off, lifted his left leg and his back “went out.” He said he did not slip in the tub and, in fact, was not even in the tub when the pain hit. He further testified that he had been working the 3-11 p.m. shift but nothing had happened at work the previous day to cause his problem. Dr. Dennis Davidson, appel lant’s family doctor, stated in a January 29,1986, letter that this incident “represents merely a flareup of his old work related injury and is not a new injury sustained at home.”
The administrative law judge held that the incident was a recurrence of appellant’s July 1982 injury, and since appellant was off work more than seven days as a result of his 1982 injury, the law judge ordered appellee to pay temporary total disability benefits for the period appellant was disabled from January 13 through January 16,1986. The full Commission agreed that this incident was a recurrence of the original 1982 injury and that appellant was entitled to medical benefits associated with the recurrence. However, it reversed the decision of the law judge awarding temporary total disability benefits for the period of January 13 through January 16 because that period of time did not exceed seven days. The Commission pointed out that Ark. Code Ann. § 11-9-501 (a) (1987) provides that compensation to the injured employee shall not be allowed for the first seven days’ disability. The Commission then explained its decision as follows:
In this case the claimant was disabled for only four days, not seven days. Therefore, he is not entitled to additional temporary total disability benefits. Although claimant contends that the four days he was off work as a result of this injury should be added to his prior dates of disability in order to meet the requirements of the statute, we cannot agree with that interpretation of the statute. Adopting that construction of the statute would circumvent the purpose and intent of the seven day waiting period set forth in the Workers’ Compensation Act. Although the result may be harsh, this is clearly the intent of the law. In fact, this statute provides that even individuals who have suffered a compensable injury may not be entitled to temporary total disability benefits. For instance, an individual who has a work-related injury requiring hospitalization but is able to return to his job within seven days receives no temporary total disability benefits. Clearly, if that individual is not entitled to temporary total disability benefits, a claimant should not be able to piecemeal assorted dates of disability together in order to obtain temporary total disability benefits in clear contravention of the law. Therefore, although the result may be harsh we reverse the decision of the Administrative Law Judge finding that the claimant was entitled to temporary total disability benefits from January 13, 1986, through January 16, 1986.
The second incident occurred on May 14, 1986. Appellant testified that on this day he hurt his back when preparing to cut a piece of angle iron which weighed approximately two hundred pounds. It fell off the saw and, in order to keep it from hitting his foot, he caught it. He said he had not been having back trouble immediately prior to this incident, and Dr. Davidson’s office notes ofMay 15,1986, state that appellant “rehurt his back last night.” Dr. Davidson’s diagnosis was a “re-exacerbation of back pain with strain and sprain.” A week of bed rest was prescribed and appellant was released to return to work on May 22.
Citing Black v. Riverside Furniture Co., 6 Ark. App. 370, 642 S.W.2d 338 (1982), and 4 Larson, Workmen’s Compensation Law § 95.23, the administrative law judge held that because there was an unusual strain or exertion which aggravated the preexisting condition, the disability was the result of an aggravation (new injury). The Commission agreed that this incident constituted an aggravation of appellant’s previous injury and because Ark. Code Ann. § ll-9-501(a) (1987) provides that compensation shall not be allowed for the first seven days’ disability, the Commission held there were no temporary total disability benefits due for this new injury which occurred on May 14, 1986.
The third incident occurred on June 23, 1986, while appellant was moving a file cabinet and its contents, which amounted to a total weight of approximately 200 pounds. As he was placing the cabinet on a dolly, the appellant felt a pain in his back. Dr. Davidson characterized this incident as a “re-exacerbation of chronic lumbar strain.” Again appellant was treated conservatively and after a week of bed rest, he returned to work. The law judge held that this incident was a recurrence of the May 14 injury; therefore, he combined the days of incapacity resulting from the May 14 and June 23 incidents and ordered that appellee pay the appropriate amount of temporary total disability resulting from the two incidents. The Commission, however, held that the third incident was not a recúrrence but an aggravation, and since appellant was not disabled for seven days as a result of the June 23 incident, he was not entitled to temporary total disability benefits.
In Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983), this court considered the distinction between a recurrence and an aggravation in the context of which of two compensation carriers, if either, had liability. We concluded:
[I]n all of our cases in which a second period of medical complications follows an acknowledged compensable injury we have applied the test set forth in Williams [Aluminum Co. of America v. Williams, 232 Ark. 216, 335 S.W.2d 315 (1960)] — that where the second complication is found to be a natural and probable result of the first injury, the employer remains liable. Only where it is found that the second episode has resulted from an independent intervening cause is that liability affected.
7 Ark. App. at 71.
Considering the three 1986 incidents in light of the test set out in Aluminum Co. of America v. Williams, supra, we must conclude that there is substantial evidence to support the Commission’s holding that the first incident was a recurrence, since it was a natural and probable result of the first compensable injury, and that the second and third incidents each constituted a new injury (an aggravation) resulting from an independent intervening cause. However, we cannot agree with the Commission’s conclusion that because appellant was not absent from work for seven days after the recurrence which resulted from the January 13, 1986, incident, he cannot recover temporary total disability for the four days he was disabled as a result of the incident. Arkansas Code Annotated Section 11-9-501 (a) (1987) provides:
Compensation to the injured employee shall not be allowed for the first seven (7) days’ disability resulting from injury, excluding the day of injury. If a disability extends beyond that period, compensation shall commence with the ninth day of disability. If a disability extends for a period of two (2) weeks, compensation shall be allowed beginning the first day of disability, excluding the day of injury.
Although most states have waiting periods during which compen sation is not payable, our research has disclosed no case in which the court has considered the effect of the waiting period on a recurrence of disability after the initial waiting period has been satisfied. In several cases the courts have examined whether the term applied to calendar days or working days and in that context the court in Phoenix Hosiery Co. v. Buzek, 242 N.W. 135 (Wis. 1932), quoted from a report of a special committee on industrial insurance, submitted to the Governor and Legislature of Wisconsin on January 10, 1911, which stated:
The object of this is to prevent malingering. A man receiving a slight injury that might disable him for three or four days, might pretend to be disabled for a week in order to receive the first week’s indemnity. But it is assumed that he would not lay up for four weeks in order to get this first week’s indemnity. This preserves to those who are seriously injured, the right to receive their compensation from date of the injury. As medical and surgical treatment are furnished in all cases it seems only fair that in minor cases not causing disability for a week, compensation should not be recovered.
242 N.W. at 136.
It has been held that when the language of a statute is clear, resort to statutory construction “crutches” is inappropriate. Patrick v. State, 265 Ark. 334, 576 S.W.2d 191 (1979). However, when statutory construction is necessary, the legislative intent behind the wording used must be determined. Amason v. City of El Dorado, 281 Ark. 50, 661 S.W.2d 364 (1983). In City of North Little Rock v. Montgomery, 261 Ark. 16, 546 S.W.2d 154 (1977), the Arkansas Supreme Court said:
We have held that “[T]he meaning of a statute must be determined from the natural and obvious import of the language used by the legislature without resorting to subtle and forced construction for the purpose of limiting or extending the meaning. **** It is our duty to construe a legislative enactment just as it reads.” Black v. Cockrill, Judge, 239 Ark. 367, 389 S.W.2d 881 (1965). We have also said “[I]n construing statutes in the absence of any indication of a different legislative intent, we give words their ordinary and usually accepted meaning in common language.” Phillips Petroleum v. Heath, 254 Ark. 847, 497 S.W.2d 30 (1973).
261 Ark. at 18. See also, Second Injury Fund v. Yarbrough, 19 Ark. App. 354, 721 S.W.2d 686 (1986).
Under Ark. Code Ann. § ll-9-501(a) (1987), no compensation for temporary total disability is provided for one who receives a minor injury which disables him for less than seven days. However, after the first seven days of disability, excluding the day of injury, disability compensation is allowed — beginning with the ninth day of disability; and if the disability extends for a period of two weeks, compensation shall be allowed beginning with the first day of disability, excluding the day of injury. Thus, our statute very clearly makes no mention of reinstating the waiting period after a recurrence of disability. Since a recurrence is not a new injury but simply another period of incapacitation resulting from a previous injury, we have concluded that under the language of our statute the waiting period applies only to the first seven days’ disability from injury. When one receives a serious injury, for which he is disabled longer than the seven-day waiting period, and recovers adequately enough to return to work, but subsequently suffers a recurrence of his disability from the original compensable injury, imposing an additional waiting period would serve only to penalize the injured employee. This would be harsh and would be contrary to the requirement that the Workers’ Compensation Act be liberally construed in favor of the claimant. See Ark. Code Ann. § ll-9-704(c)(3) (1987) (not to be confused with § 1 l-9-704(c)(4) which provides that evidence is to be weighed impartially without giving the benefit of the doubt to any party).
Therefore, we hold that the Commission erred in refusing to allow the appellant compensation for the four days — January 13, 1986, through January 16,1986 — that he was disabled as a result of the incident which occurred on the morning of January 13, 1986, and which resulted in a recurrence of his July 1982 injury.
We affirm the Commission’s refusal to allow compensation for the days appellant was disabled as a result of the incident occurring on May 14, 1986, and the incident occurring on June 23,1986. We agree that the Commission was correct in refusing disability for those days because we affirm the Commission’s findings that the incidents that occurred on those days were new injuries and not recurrences, and neither injury resulted in disability for more than seven days.
Affirmed in part; reversed in part; and remanded for proceedings in keeping with this opinion.
Corbin, C.J., and Jennings, J., agree. | [
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Judith Rogers, Judge.
The appellant, Terry Urquhart, appeals his conviction of delivery of a controlled substance (cocaine) for which he received a sentence of ten years in the Arkansas Department of Correction and a fine of $5,000. For reversal, he raises the following three issues: (1) the trial court erred in denying appellant’s motion to dismiss based upon the invalidity of the arrest warrant; (2) the trial court erred in improperly limiting appellant’s cross-examination of the state’s witness, Officer Robert Thomas, as permitted under Rule 608(b) of the Arkansas Rules of Evidence; and (3) the trial court erred in failing to suppress the in-court identification based upon no physical description being supplied either to the state or appellant prior to trial. We find merit in the second issue raised by the appellant, and accordingly we reverse and remand.
The record reveals that the appellant’s arrest and subsequent conviction stemmed from a drug “sting” operation in Pine Bluff. The operation was conducted by the local police department and involved the use of an undercover police officer, Robert Thomas, who was associated with the Drug Task Force from El Dorado. Officer Thomas testified that he, accompanied by a confidential informant, made a purchase of cocaine from the appellant for $ 15 0 on September 17,1987. At trial, the state only offered the testimony of Officer Thomas and a chemist from the State Crime Laboratory, Kim Brown, who related that the substance in question that was tested was cocaine.
As his second point on appeal, the appellant argues that the trial court erred by not allowing him to cross-examine Officer Thomas concerning certain alleged instances of misconduct pursuant to Rule-608(b) of the Arkansas Rules of Evidence. We agree.
Rule 608(b) provides in part as follows:
(b) Specific Instances of Conduct. Specific instances of the conduct of a witness for the purpose of attacking or supporting his credibility . . . may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness.
In interpreting this rule, the supreme court has adopted a threefold test for admissibility: (1) the question must be asked in good faith; (2) the probative value must outweigh its prejudicial effect; and (3) the prior conduct must relate to the witness’s truthfulness. Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983). The latter prong of the test has been taken to mean a lack of veracity rather than dishonesty in general. McKinnon v. State, 287 Ark. 1, 695 S.W.2d 826 (1985); Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982).
In the case at bar, the substance of the proffered inquiry involved two instances in which Officer Thomas had allegedly made false statements, to a captain of the Pine Bluff Police Department in his initial interview, and to a deputy prosecuting attorney there concerning ownership of a firearm. Records from the Pine Bluff Police Department were also proffered revealing that each occurrence resulted in disciplinary action.
It is clear from the proffered evidence that the intended questioning was being pursued in good faith. Also, it is without question that these instances of misconduct involving the giving of false statements are related to the witness’s veracity, and were thus probative of his capacity for truthfulness as required by the rule. Our supreme court has looked to the decisions of the federal courts when construing Rule 608(b). See McKinnon v. State, supra; Rhodes v. State, supra. In United States v. Fortes, 619 F.2d 108 (1st Cir. 1980), the court said:
A witness’ response to a question whether he told the truth on a previous occasion could well be probative of his character for truthfulness or untruthfulness. And, when a case turns to a large extent on the credibility of defendant’s accuser, broad cross-examination of that principal witness should be allowed. Still, the district court is not bound to allow examination into every incident, no matter how remote in time and circumstance, that may possibly bear upon the witness’ veracity. In reviewing the trial judge’s exercise of discretion, one factor to be considered is the extent to which the excluded question bears upon character traits that were otherwise sufficiently explored. The court need not permit unending excursions into each and every matter touching upon veracity if a reasonably complete picture has already been developed.
Id. at 118 (citations omitted). See also United States v. Cole, 617 F.2d 151 (5th Cir. 1980) (inquiry concerning the submission to a former employer of a false excuse for being absent from work permissible).
As was recognized by the court in Rhodes v. State, supra, this witness’s “credibility was a key to the state’s case and it was crucial to the appellant’s case that he be allowed to conduct as full an impeachment of the witness’s credibility as the rules of evidence allow.” Under the facts of this case, we therefore conclude that the appellant should have been allowed to pursue this line of questioning, and that the trial court abused its discretion by limiting cross-examination on this issue. However, in so holding, we do note that the rule expressly prohibits the introduction of extrinsic evidence to prove such misconduct, even if the witness denies the event. See Rhodes v. State, supra.
We will address the remaining issues to the extent that they are likely to arise on remand. First, the appellant contends that the trial court erred in denying his motion to dismiss based on the alleged invalidity of the warrant issued for his arrest. We cannot agree with this contention as an illegal arrest alone does not provide grounds for dismissal. An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction. United States v. Crews, 445 U.S. 463, 474 (1980). An invalid arrest may call for the suppression of a confession or other evidence but it does not entitle the defendant to be discharged from the responsibility for the offense. Clark v. State, 26 Ark. App. 268, 764 S.W.2d 458 (1989), citing Pipes v. State, 22 Ark. App 235, 738 S.W.2d 423 (1987) (emphasis supplied).
Assuming arguendo that the arrest warrant was invalid, our analysis would then proceed to a determination of whether in any event there was probable cause to effect a warrantless arrest. See e.g. Davis v. State, 293 Ark. 472, 739 S.W.2d 150 (1987); Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982). For even if the arrest warrant must fail, an arrest itself is valid if it is otherwise supported by probable cause. Davis v. State, supra.
Probable cause to arrest without a warrant exists when the facts and circumstances within the officer’s collective knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed by the person to be arrested. Rose v. State, 294 Ark. 279, 742 S.W.2d 901 (1988). Given that Officer Thomas purportedly made a direct purchase of a controlled substance from the appellant, we conclude that there was probable cause for his arrest, even in the absence of a valid arrest warrant.
As his final issue, the appellant argues that the trial court erred in failing to suppress Officer Thomas’ in-court identification of the appellant as no physical description was supplied prior to trial. It is the appellant’s contention that such evidence was inadmissible because Officer Thomas did not provide, or his reports did not contain, a physical description of the alleged offender. We take part of his argument to mean that the absence of a description rendered the identification “unreliable.”
The cases referred to us by the appellant all involve the exclusion of in-court identifications based on suggestive pre-trial identification procedures. These references are inapplicable to the case at bar as the record does not indicate that such a pre-trial procedure was utilized. Instead, the record reflects that the officer’s identification was based upon his independent recollection of the event in question. The subsequent in-court identifica tion without a written record of the suspect’s physical description did not necessarily render it unreliable. Even assuming that the reliability of the in-court identification was at issue, based upon the absence of a description of the offender, under these circumstances we regard this not as a matter of admissibility but as one of the weight and credibility to be given to the witness’s testimony. This, of course, is a subject that can be adequately tested on cross-examination. Inasmuch as the appellant has cited no authority for the proposition that the lack of a physical description is a bar to identification testimony, we find no error in this regard. See Bonds v. State, 296 Ark. 1, 751 S.W.2d 339 (1988).
REVERSED and REMANDED.
Cooper and Jennings, JJ., agree. | [
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Judith Rogers, Judge.
This interpleader action involves a dispute over the proceeds of a life insurance policy. Upon finding that the primary beneficiary was disqualified for having wrongfully caused the death of the insured, the chancery court held that the proceeds were distributable to the contingent beneficiary named in the policy, as opposed to the insured’s estate. On appeal, the appellant contends that this decision is contrary to Arkansas law and the terms of the policy. We uphold the decision of the chancellor, and affirm.
The record reveals that on March 2, 1983, the insured, Randall Floyd, Jr., entered into a contract of life insurance with Federal Kemper Life Assurance Company. The policy was issued in the face amount of $100,000, and designated the insured’s wife, Jackie Lee Floyd, as primary beneficiary, and his father, Randall Floyd, Sr., appellee herein, as the contingent beneficiary. The insured died intestate on March 15,1988, and was survived by appellee, his wife, a son, and a daughter, Amy Spencer, the appellant. Upon entering a plea of guilty, the insured’s wife, the primary beneficiary, was convicted of first degree murder in connection with the death of the insured, and she is presently serving a term of life imprisonment in the Arkansas Department of Correction.
After receiving a claim by appellee for the proceeds of the policy, Federal Kemper instituted this litigation as an inter-pleader action, joining as defendants both appellee and the insured’s estate. Appellant, claiming a beneficial interest through the estate, was allowed to intervene, and thereafter she filed a motion for judgment on the pleadings. By order of April 27, 1989, the chancellor determined that the proceeds were payable to appellee, as the contingent beneficiary named in the policy. It is from this order that this appeal arises.
As below, the sole question on appeal is who, as between the insured’s estate and the named contingent beneficiary, is entitled to the proceeds of a life insurance policy when the primary beneficiary intentionally murders the insured? By stating the issue in this manner we are recognizing that it is settled law in Arkansas that when the beneficiary in a policy of life insurance, wrongfully kills the insured, public policy prohibits a recovery by the beneficiary. Calaway v. Southern Farm Bureau Life Ins. Co. 2 Ark. App. 69, 619 S.W.2d 301 (1981). See also York, Administratrix v. Hampton, 229 Ark. 301, 314 S.W.2d 480 (1958); Horn v. Cole, Administrator, 203 Ark. 361, 156 S.W.2d 787 (1941); Inter-Southern Life Ins. Co. v. Butts, 179 Ark. 349, 16 S.W.2d 184 (1929); Cooper v. Krisch, 179 Ark. 952, 18 S.W.2d 909 (1929); Metropolitan Life Ins. Co. v. Shane, 98 Ark. 132, 135 S.W. 836 (1911). In Shane, our supreme court stated:
The willful, unlawful and felonious killing of the assured by the person named as beneficiary in a life policy forfeits all rights of such person therein. It is unnecessary that there should be an express exception in the contract of insurance forbidding a recovery in favor of such person in such event. On considerations of public policy the death of the insured, willfully and intentionally caused by the beneficiary of the policy, is an excepted risk as far as the person thus causing the death is concerned.
98 Ark. at 138, 135 S.W. at 839. The finding of the chancellor that the primary beneficiary is disqualified for having wrongfully murdered the insured is not contested on appeal.
The appellant’s argument that the proceeds should become an asset of the estate is two-fold. She first argues that this result is supported by Arkansas law, and she refers us to the decisions in Horn v. Cole, Administrator, supra, and Cooper v. Krisch, supra. Secondly, appellant contends that this result is consistent with the terms of the subject policy. The policy provides:
Death — Unless otherwise provided:
1. If no beneficiary survives the insured, the proceeds of the policy will be paid to the insured’s estate or assigns.
2. The interest of any beneficiary who dies before the insured will pass to any beneficiary who survives, share and share alike.
In this regard, appellant argues that the policy specifies that the contingent beneficiary takes only when the primary beneficiary dies before the insured, and since the primary beneficiary is still living, the contingency upon which the alternative beneficiary would prevail has not arisen, and thus the proceeds are then distributable to the insured’s estate. Conversely, the appellee argues that the intent of the insured is controlling, which is indicated by his naming a contingent beneficiary. The chancellor here found that this expression of the insured’s intent was determinative, as he found “that it was the insured’s intent as clearly expressed in the policy that in the event his wife, Jackie Lee Floyd, was unable to take the proceeds of the insurance policy, the proceeds would be paid to the named contingent beneficiary, Randall Floyd, Sr.”
We have reviewed the Arkansas decisions in this area of law, but do not find them to be controlling on the issue now before us. In Cooper v. Kirsch, supra, the insured’s estate was preferred over an heir when the sole beneficiary to the life insurance policy murdered the insured. There, citing Inter-Southern Life Ins. Co. v. Butts, supra, and Metropolitan Life Ins. Co. v. Shane, supra, the supreme court stated that “when the beneficiary in a policy of insurance unlawfully kills the insured, public policy prohibits recovery by him, and that the amount of the insurance automatically becomes an asset of the deceased’s estate, to be recovered by the administrator for the payment of debts and distribution to heirs.” Likewise, in the case of Horn v. Cole, Administrator, supra, it was held that the estate was entitled to the proceeds as it was found that the sole beneficiary unlawfully killed the insured. In these decisions, however, our appellate courts have not addressed this question in the context of a dispute between the estate and a contingent beneficiary. Only in Calaway v. Southern Farm Bureau Life Ins. Co., supra, was there involved a contingent beneficiary, who unsuccessfully appealed the lower court’s decision that the killing of the insured by the primary beneficiary was justified, which thereby permitted the primary beneficiary to receive the proceeds. The precise issue in the instant case has not been addressed by our appellate courts; therefore, it is one of first impression in this state.
Since this is a novel question, we have looked to other jurisdictions for guidance. However, we note that of those jurisdictions which have squarely addressed this question, the courts have reached divergent conclusions. In favoring the estate over the contingent beneficiary, some courts strictly construe the terms of the policy in question, as advanced by appellant, while others have denied recovery by the contingent beneficiary based upon statutory authority. Courts which have held for the contingent beneficiary primarily do so based on the intent of the insured, as argued by appellee. Some jurisdictions have preferred the contingent beneficiary despite statutory language seemingly to the contrary, while yet another considers the primary beneficiary to have predeceased the insured for the purpose of interpreting the policy. While this survey is by no means exhaustive, it is indicative of the range of the opinions on this issue.
The leading decisions, however, supporting the parties’ respective positions, appear to be Beck v. West Coast Life Ins. Co., 38 Cal. 2d 643, 241 P.2d 544 (1952), and Bullock v. Expressmen’s Mutual Life Ins. Co., 234 N.C. 254, 67 N.E.2d 71 (1951). In Bullock, the North Carolina Court strictly construed the terms of the policy which provided that upon the death of the insured, the insurance money should be paid to the primary beneficiary, if living, or if not living to the contingent beneficiary. The court determined that the alternative beneficiary’s interest was contingent upon not only the death of the insured, but also the death of the primary beneficiary. Since the primary beneficiary was still living, although prohibited from taking, the court concluded that the contingency had failed upon which the alternative beneficiary’s interest devolved, and thus the estate was held to be entitled to the proceeds of the policy.
On the other hand, in Beck, supra, although there was analogous language in the policy under consideration, Judge Traynor, speaking for the California court, concluded that the contingent beneficiary should prevail against the estate based on the intent of the insured as determined by the naming of an alternative beneficiary. The court said:
Because the beneficiary clause of a life insurance policy in which the insured has reserved the right to change beneficiaries is donative and testamentary in character, the intent of the insured as expressed by the language that she used should be given effect so far as possible. Although her expressed intent that her husband receive the proceeds cannot be given eifect, the policy names the one she wished to take if her husband could not. It stated that the proceeds should be paid to the alternative beneficiary, if the primary beneficiary predeceased the insured. Thus, in the type of disability that would naturally be anticipated by the insured, the alternative beneficiary was preferred over the estate of the insured. In this case there occurred the only other possible contingency in which the primary beneficiary would be under a disability equivalent to actual death. The insured has clearly indicated her intent that any interest her estate might have in the proceeds of the policy should be subordinate to the interest of the alternative beneficiary. This intent is recognized by a holding that the alternative beneficiary may recover the proceeds. A holding that the estate of the insured is entitled to the proceeds would not only defeat this intent, but would also enable the murderer to deprive the alternative beneficiary of her opportunity to take in preference to the estate by foreclosing the possibility that the murderer might predecease the insured. The rule that prevents his profiting by his own wrong should not be invoked in such a way as to prejudice the rights of the alternative beneficiary. ‘In a word, it appears to me that the crime of one person may prevent that person from the assertion of what would otherwise be a right, and may accelerate or beneficially affect the rights of third persons, but can never prejudice or injuriously affect those rights.’
Beck, 241 P.2d at 546-47 (citations omitted). Similarly, in Carter v. Carter, 88 So. 2d 153 (Fla. 1956), it was stated:
Although obviously not a will, the beneficiary clause of a life insurance policy is in some measure analogous in principle to the disposition of one’s estate by will. It is usually ambulatory. It is almost always donative, and in a sense it is testamentary in character in that payment is customarily contingent upon the death of the insured. In view of the nature of the beneficiary clause, it would appear to be appropriate in construing it to endeavor to give effect to the intent of the insured if it is possible to do so without doing violence to the expressed language of the policy.
Carter, 88 So. 2d at 159-60. The court further found that the word “beneficiary” comprehends the term in its broadest legal sense and must be considered as having reference to the survival of a beneficiary eligible to take. The court declined to follow the decision in Bullock, and in agreement with Beck, it held that “ [w] e prefer to adhere to what we consider the better rule which is one that appears to give effect to the intent of the insured by paying the proceeds to the beneficiary first in priority who is eligible under the law to receive the money.”
Other courts have determined that the proceeds in this situation should be distributed to the contingent beneficiary based upon similar reasoning. In Brooks v. Thompson, 521 S.W.2d 563 (Tenn. 1975), the Tennessee court surmised:
Admittedly the insured in cases such as this never anticipates being feloniously killed by the primary beneficiary. It is difficult to know what the actual intention of the insured would have been had the problem in question been brought to his attention. It is clear, however, that he did name an alternate beneficiary in the insurance policy, and in our opinion the better view is to allow the proceeds to pass according to the alternative provisions of the policy rather than go as intestate personal property.
Brooks, 521 S.W.2d at 567 (emphasis ours). Moreover, in Maneval v. Lutheran Brotherhood Corp., 281 A.2d 502 (Del. Super. Ct. 1971), it was said:
Although there are cases to the contrary, the better rule in similar cases in other courts gives effect to the underlying intent of the insured and permits the contingent beneficiaries to recover despite the fact that the primary beneficiary, barred from recovery by operation of law, has in fact survived the insured.
Maneval, 281 A.2d at 504 (emphasis ours).
We agree that the “better view” is to permit recovery by the contingent beneficiary as opposed to the insured’s estate, when the primary beneficiary wrongfully causes the death of the insured. Under Arkansas law, provisions in insurance policies as to beneficiaries are in the nature of a last will and testament, and as such, these provisions are to be construed in accordance with the rules applicable to the construction of wills. American Foundation Life Ins. Co. v. Wampler, 254 Ark. 983, 497 S.W.2d 656 (1973). The cardinal rule for the interpretation of wills or other testamentary documents is that the intent of the testator should be ascertained from the instrument itself and effect given to that intent. Ware v. Green, 286 Ark. 268, 691 S.W.2d 167 (1985). The purpose of construing a will or testamentary document is to arrive at the testator’s intention, but that intention is not that which existed in his mind, but that which is expressed by the language of the instrument. Mills Heirs v. Wylie, 250 Ark. 703, 466 S.W.2d 937 (1971).
We believe that the intent for the contingent beneficiary to recover the proceeds in the instant case can be gleaned from the terms of the policy itself in that the insured designated an alternative beneficiary, and the policy provided that the insured’s estate should take only if no beneficiary survived the insured. We also note that one reason why many people take out life insurance policies payable to named beneficiaries is to provide those beneficiaries with funds which are not subject to probate and thus claims against the estate. See Life Ins. Co. of Virginia v. Cashatt, 206 F. Supp. 410 (E.D. Va. 1962). We find unpersuasive the narrower construction advanced by the appellant that the contingent beneficiary should not recover because the primary beneficiary is actually living. Just as the primary beneficiary cannot profit from his own wrong, his actions should not be allowed to frustrate the expressed intent of the insured, and deprive the contingent beneficiary of his interest in the proceeds of the insurance policy.
Therefore, we affirm the decision of the chancellor.
AFFIRMED.
Jennings and Mayfield, JJ., agree.
Originally, the complaint named appellee as defendant both individually and as the personal representative of the insured’s estate. Appellee was duly replaced by order of the probate court by a special administrator, Dale Arnold, who was substituted in this action to represent the claim of the estate.
Webb v. Voirol, 773 F.2d 208 (8th Cir. 1985); Life & Casualty Ins. Co. v. Martin, 603 F. Supp. 281 (E.D. Mo. 1985); Reliable Life Ins. Co. v. Spurgeon, 163 S.W.2d 674 (Mo. App. 1988); Bullock v. Expressmen’s Mutual Life Ins. Co., 234 N.C. 254, 67 S.E.2d 71 (1951).
Crawford v. Coleman, 726 S.W.2d 9 (Tex. 1987) (overruling Deverox v. Nelson, 529 S.W.2d 510 (Tex. 1975); Dowdell v. Bell, 477 P.2d 170 (Wyo. 1970). Cf. Seidlitz v. Eames, 753 P.2d 775 (Colo. App. 1987); Wilkins v. Fireman’s Fund American Life Ins. Co., 107 Idaho 1006, 695 P.2d 391 (1985).
Life Ins. Co. of Virginia v. Cashatt, 206 F. Supp. 410 (E.D. Va. 1962); Maneval v. Lutheran Brotherhood Corp., 281 A.2d 502 (Del. Super. Ct. 1971); Metropolitan Life Ins. Co. v. Wenckus, 244 A.2d 424 (Me. 1968); Turner v. Prudential Ins. Co. of America, 60 N.J. Super. 175, 158 A.2d 441 (1960); Carter v. Carter, 88 So.2d 153 (Fla. 1956);Beck v. West Coast Life Ins. Co., 38 Cal.2d 643, 241 P.2d 544 (1952); Neff v. Massachusetts Mutual Life Ins. Co., 158 Ohio St. 45, 107 N.E.2d 100 (1952); Prudential Ins. Co. of America v. Baitinger, 452 So.2d 140 (Fla. Dist. Ct. App. 1984).
Lewis v. Lewis, 315 N.E.2d 816 (S.C. App. 1984); Brooks v. Thompson, 521 S.W.2d 563 (Tenn. 1975).
In re Kaplan's Estate, 49 Misc.2d 335, 267 N.Y.S.2d 345 (1966). | [
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JIM GUNTER, Justice.
^Appellant appeals the circuit court’s grant of appellee’s motion for sanctions, in which the court struck appellant’s answer and declared a default judgment in favor of appellee on the issue of liability. On appeal, appellant asserts that the court erred because (1) Judge Simes had no authority to enter the strike order; (2) the order compelling discovery was deficient on its face and could not serve as a basis for sanctions; (3) the order compelling discovery was entered in error. We reverse and remand.
On August 25, 2005, appellee was injured at his workplace when he was struck by a vehicle. The accident pinned him against a wall and crushed his left leg. He was transported to Helena Regional Medical Center, where he was examined and treated by Dr. Vijahabhasker Reddy. On August 14, 2008, appellee filed a complaint in the Phillips County Circuit Court, naming Helena Regional Medical Center, Phillips Hospital Corporation d/b/a ^Helena Regional Medical Center, and Exigence, LLC, as defendants, and alleging numerous claims of negligence, breach of contract, and vicarious liability. Appellee alleged that he was given inadequate care, inadequate discharge instructions, and that no tests were performed to discover a transected left popliteal artery, which eventually resulted in his left leg being amputated. The appellant in this case, Exigence, LLC (Exigence), had entered into an exclusive “Emergency Services Agreement” with Phillips Hospital Corporation, under which Exigence provided physicians to serve the hospital and had specifically contracted with Dr. Reddy to provide emergency medical services for Helena Regional Medical. Center. An amended complaint, containing a somewhat lengthier factual background and allegations section, was filed on August 28, 2008. Answers to the complaint and the first amended complaint were filed by Exigence on December 17, 2008, in which Exigence denied all allegations of wrongdoing.
Thereafter, between February 19, 2009, and July 30, 2009, appellee filed at least five separate motions to compel, seeking, inter alia, (1) responses to requests for production; (2) verified answers to interrogatories; (3) supplemental discovery responses; (4) insurance policy information; and (5) documentation analysis reports. On August 17, 2009, a hearing was held on the various motions to compel and other pending motions. Generally, appellee argued, and Exigence admitted, that since the lawsuit had been filed in August 2008, Exigence had failed to provide a list of witnesses, evidence, or opinions of its experts. Appellee asked that Exigence be ordered to properly reveal this information or be barred from using such | ..¡information at trial. The court ordered Exigence to provide all requested information by August 31, 2009. Exigence, however, instead filed an objection to appel-lee’s request for production of documents on August 21, 2009, so appellee again filed a motion to compel on August 27, 2009. On September 4, 2009, appellee filed a motion for sanctions, alleging that Exigence had willfully refused to fully and completely comply with the court’s orders and asking the court to enter a sanction, including but not limited to striking Exigence’s answer.
Exigence filed a response to the motion to compel on September 14, 2009, arguing that some of the materials sought by ap-pellee postdated the accident by over two years or sought confidential payroll information and physician personnel files that were not reasonably calculated to lead to the discovery of admissible evidence. Exigence also asserted that some of the materials were protected by the attorney-client privilege. On September 15, 2009, Exigence filed a response to the motion for sanctions and denied that there was any basis for sanctions.
A hearing was held on the motion to compel on September 15, 2009, and after hearing arguments from counsel oh the propriety of the various requests, the court held that the items requested were discoverable and should be produced. Therefore, the court granted the motion to compel but also ordered the attorneys to work out a protective agreement to deal with any confidentiality issues. The court stated, “I am ordering the information be provided, okay? |4At the same time, I’m saying it will not be provided until there is some language satisfactorily that takes care of or deal[s] with questions of confidentiality, et cetera. Submit the language to me. If I agree with it, then we’ll have it provided at that time.” Appellee’s counsel asked for a time limit of ten days from the date of the hearing, due to the pending trial date, and the court stated:
I want to say twenty days. That’s going to double the time. I’m going to say the order will say twenty days. I want you all to be clear on what I’m saying now. They have to supply the information to Mr. Hodges [counsel for appellee], Mr. Hodges, you can’t do anything with it but look at it only. Then I’m going to rule on this confidential stuff.... But I’m ordering it to be provided for Mr. Hodges [’s] inspection only, until I enter an order regarding privilege and attorney stuff. So, therefore, Mr. Wakefield [counsel for Exigence], right now, it’s going to be delivered to Mr. Hodges as a sealed court document for Mr. Hodges’s inspection.
The court also ordered the parties to enter mediation.
On September 25, 2009, Exigence filed a motion asking the court to reconsider its grant of the motion to compel, again arguing issues of privilege and confidentiality. On October 1, 2009, appellee filed a motion for sanctions, asserting that the court-ordered mediation was scheduled for October 16, 2009, but that Exigence had also filed a notice of deposition of one of its expert witnesses on October 16, 2009, directly conflicting with the order of the court regarding mediation. Appellee also filed an objection to the notice of deposition and a motion for a protective order. On October 5, 2009, appellee responded to Exigence’s motion for reconsideration, arguing that there is no procedural device known as |sa motion for reconsideration and that Sling such a motion did not excuse Exigence from fully and promptly complying with the court’s order compelling discovery. On October 8, 2009, an order was entered that incorporated the court’s rulings at the September 15, 2009 hearing, including the ruling that Exigence had twenty days from September 15, 2009, to fully and completely respond to the discovery request.
On October 13, 2009, appellee Sled another motion for sanctions, arguing that Exigence had still not provided the discovery materials as ordered by the court. Appellee alleged that Exigence had willfully disobeyed the court’s order and asked the court to strike Exigence’s answer and enter a default judgment as to Exigence. Appellee Sled an amendment to this motion for sanctions two days later, arguing against Exigence’s claim that its Sling of a motion for reconsideration created an automatic stay of the discovery order. Exigence responded on October 20, 2009, arguing that the court had not speciSed at the hearing when the twenty-day period would begin to run, and the order that was entered on October 8, 2009, established a deadline of October 5, 2009, which had already passed. Exigence asserted that because the court had not established a firm deadline, the harsh sanction of a default judgment would be unjust.
A hearing was held on November 2, 2009, at which appellee again requested that Exigence’s answer be stricken and a default judgment entered due to Exigence’s noncompliance with the discovery order, especially considering that the trial was scheduled to begin in seventeen days. Exigence argued that it filed its motion for reconsideration prior | fito seeing any written order with regard to when discovery was due, and that the order was not entered until October 8 and received by Exigence until October 13. Exigence urged the court to review the requested documents in camera before making a final decision on discovery. Appellee argued that Exigence’s counsel was at the September 15, 2009 hearing and knew the court ordered the documents produced within twenty days of that hearing. Ap-pellee contended that there was no authority that stated a written order was required when the court had specifically ruled from the bench. The court took the matter under advisement and stated it would issue its ruling by the end of the week, which was four days away.
On November 4, 2009, appellee filed an additional motion for sanctions, alleging that Exigence had filed a confidential agreement between appellee and Dr. Red-dy in the pleadings, thereby making it a public record and violating the confidentiality provision of the agreement. Also on November 4, 2009, appellee’s counsel sent a letter to the court withdrawing the request to strike Exigence’s answer and enter a default judgment. Counsel reasoned that “we do not believe the sanctions should be striking the answer because that would allow Exigence, LLC, to have an immediate appeal or, stated otherwise, an intermediate appeal, and we want to have the case tried as scheduled beginning November 19, 2009 and not have an intermediate appeal.” Instead, appellee requested whatever sanctions the court deemed appropriate.
On November 5, 2009, this court handed down our opinion in Judicial Discipline & Disability Commission v. Simes, 2009 Ark. 543, 354 S.W.3d 72, in which we suspended Judge 17Simes, the circuit judge in this case, from the bench until the end of his current term, which is December 31, 2010. The opinion did not specify that no motion for rehearing would be entertained. Also on November 5, appellee’s counsel sent a letter to all other counsel in the present case and noted that although this court had suspended Judge Simes, from the standpoint of appellee the case would still proceed to trial on November 19 because the mandate had not issued and we had not stated it was an immediate suspension.
On November 9, 2009, appellee apparently sent a letter to the court renewing his request for the striking of Exigence’s answer and the entering of a default judgment, although this letter is not in the record. Also on November 9, Exigence responded by objecting to this informal request to strike and arguing that appellee must formally re-request such a sanction. On November 10, 2009, Exigence filed a motion asking Judge Simes to recuse in light of his recent suspension. Exigence also requested recusal based on Judge Simes’s connection to a previous case, L.T. Simes and Raymond Simes v. Henry Radio, et al, Lee County Circuit Court, Case No. CIV 98-80. In that case, Judge Simes was a litigant represented by his brother, and Exigence’s counsel represented the defendant. The case was eventually dismissed, in part for Simes’s failure to comply with discovery, and Simes was ordered to pay attorney’s fees. As those fees have yet to be paid in their entirety, Exigence’s counsel is Judge Simes’s brother’s creditor, and for that reason Judge Simes should recuse. Based on the suspension and this earlier case, Exigence argued that it had a reasonable basis to question Judge Simes’s fairness and impartiality.
On November 12, 2009, the court entered an order finding that Exigence had willfully and deliberately failed and refused to comply with the court’s discovery requirements and that filing a motion for reconsideration did not justify Exigence’s failure to comply with the court’s order. The court denied the motion for reconsideration, granted the motion for sanctions, struck Exigence’s answer, and declared a default on the issue of liability. The court held that damages would be tried on November 19, but then entered a separate order continuing the trial to be rescheduled. Exigence filed a notice of appeal on November 20, 2009.
The imposition of sanctions for failure to provide discovery rests in the trial court’s discretion, and this court has repeatedly upheld the trial court’s exercise of such discretion in fashioning severe sanctions for flagrant discovery violations. Rees v. Smith, 2009 Ark. 169, 801 S.W.3d 467. On appeal, appellant asserts three reasons that the circuit court entered its order in error: (1) Judge Simes had no authority to enter the strike order; (2) the order compelling discovery was deficient on its face and could not serve as a basis for sanctions; (3) the order compelling discovery was entered in error.
For its first point on appeal, Exigence asserts that Judge Simes had no authority to enter the order imposing the sanctions of striking its answer and entering default judgment on liability. Exigence contends that, as of the date this court handed down our opinion in JDDC v. Simes (November 5), Judge Simes had no authority to act as a circuit judge. Exigence asserts that Arkansas Supreme Court Rule 5-3, which governs mandates and the finality of decisions, does not apply to judicial-discipline cases because they are neither civil nor criminal in nature. ^Because we ordered that Judge Simes be “suspended,” and not “suspended at some point in the future,” the suspension should be construed as taking effect immediately, thus rendering any actions taken by Judge Simes subsequent to November 5 void and without legal effect. Exigence acknowledges that a mandate did issue in that case but asserts that this was “a mistake.” Exigence also ar gues that even though Judge Simes had fifteen days to file a motion for rehearing, the order of suspension was not stayed during that period. Exigence urges this court to set aside the strike order/default judgment and remand the case for a trial on the merits.
In response, appellee first asserts that this issue was raised in Exigence’s motion to recuse, and because it obtained no ruling on that motion, the issue is not proper for appeal. Appellee also asserts that the issue is not properly before this court because it was not listed as a point of appeal in Exigence’s notice of appeal. On the merits of Exigence’s argument, appellee contends that the rules answer the question of when this court’s order of suspension was final. Under Rule 5 — 3(a), “[a] decision is not final until the time for filing of petition for rehearing ... or, in the event of the fíling of such petition, until there has been a final disposition thereof.” In addition, according to Rule 12(E) of the Rules of Procedure of the Arkansas Judicial Discipline and Disability Commission,
the Supreme Court shall file a written opinion and judgment directing such disciplinary action as it finds just and proper.... The court may direct that no motion for rehearing will be entertained, in which event its decision shall be final upon filing. If the court does not so direct, the respondent may file a motion for rehearing within fifteen (15) days of the filing of the decision.
Appellee argues that at the time Judge Simes entered the order, neither the time for filing a petition for rehearing had expired, nor had there been a final disposition. Therefore, Judge Simes had authority to enter the order.
We agree with appellee that this argument is not properly preserved for our review. Exigence argues on appeal that Judge Simes lost his authority to enter any order after this court’s November 5 opinion was issued; however, in its motion for recusal, Exigence asserted only that this court’s findings in JDDC v. Simes, “create[d] a legitimate question in the mind of Exigence ... concerning Judge Simes’s bias and impartiality.” It is well settled that this court does not consider arguments raised for the first time on appeal, and a party cannot change the grounds for an objection or motion on appeal, but is bound by the scope and nature of the arguments made at trial. Yant v. Woods, 353 Ark. 786, 120 S.W.3d 574 (2003). In addition, there was no ruling on the argument made in the motion for recusal, and this court will not address an argument on appeal if a party has failed to obtain a ruling below. Simpson Housing Solutions, LLC v. Hernandez, 2009 Ark. 480, 347 S.W.3d 1. Therefore, we find appellant’s argument is not preserved for review and affirm.
IFor its second point on appeal, Exigence argues that it did not have “sufficient identification of the duty that the Court was imposing,” and specifically that it did not know the date on which it was required to produce the documents in question. Exigence asserts that although the court stated at the hearing that it would enter an order providing twenty days for the production of the documents, the court did not specify whether that twenty-day period would begin to run on the date the order was entered or the date of the hearing itself. In addition, when the order was entered on October 8, it set a deadline of October 5, which had already passed. Under these circumstances, Exigence argues, imposing any sanction, especially the severe sanction of striking the answer and entering a default judgment, is manifestly unjust and should be reversed.
In response, appellee contends that Exigence’s argument is “disingenuous” because it never produced the required documents, either before or after the twenty-day deadline had expired. In fact, at the November 2 hearing on sanctions, held nearly six weeks after the September 15 hearing and twenty-five days after the order compelling discovery was entered, Exigence had still not delivered the documents to appellee but instead asked the court to review them in camera. Appellee argues Exigence’s failure to comply was deliberate and not based upon any confusion as to the date by which compliance was required. In addition, appellee argues that Exigence’s failure to comply cannot be excused because it failed to obtain a protective order under Ark. R. Civ. P. 26(c) (2009). Rule 37(d) of the Arkansas Rules of Civil Procedure provides, in pertinent part:
If a party ... fails ... to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories ... the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B) and (C) of subdivision (b)(2) of this rule.... The failure to act described in this subdivision'may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided in Rule 26(c).
Ark. R. Civ. P. 37(d) (2009).
In reply, Exigence repeats its assertion that the order was “facially deficient” because it set a deadline that had already passed. Exigence also disputes the application of Rules 26(c) and 37(d) to the instant case, because in this case there was no failure to act. Exigence argues that it timely served appellee with objections to the discovery requests, thereby removing it from the ambit of Rule 37(d).
We find a meritorious basis for reversal on this point. It is clear to this court from the September 15 hearing that the circuit court wanted the discovery provided within twenty days from the hearing, but an order to that effect still had to be entered to be effective. Rule 58 of the Arkansas Rules of Civil Procedure provides that a judgment or decree is effective only when set forth on a separate document and entered as provided in Arkansas Supreme Court Administrative Order No. 2. Ark. R. Civ. P. 58 (2009). Administrative Order No. 2(b)(2) (2009) provides:
The clerk shall denote the date and time that a judgment, decree or order is filed by stamping or otherwise marking it with the date and time and the word “filed.” A judgment, decree, or order is entered when so stamped or marked by the clerk, irrespective of when it is recorded in the judgment record book.
This court has made it clear that a judgment or decree is not effective until it has been “entered” as provided in Rule 58 and Administrative Order No. 2. See Price v. Price, 341 Ark. 311, 16 S.W.3d 248 (2000); Blaylock v. Shearson Lehman Bros., Inc., 330 Ark. 620, 954 S.W.2d 939 (1997); Standridge v. Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989). In addition, this court has specifically held that an oral order is not effective until entered of record. Hewitt v. State, 362 Ark. 369, 208 S.W.3d 185 (2005). In this case, the order requiring the documents to be produced by October 5 was not entered and thus did not become effective until October 8, thus making it impossible for Exigence to com ply with the order. Because the order was not timely entered and is deficient on its face, a violation of that order cannot not be a proper basis for the award of sanctions. We therefore reverse the order striking appellant’s answer and granting default judgment in favor of appellee and remand for further proceedings.
For its third point on appeal, Exigence asserts that the order compelling discovery was entered in error because the information sought was protected by the attorney-client privilege. Specifically, Exigence asserts that three of appellee’s requests for production, Nos. 12, 13, and 16, implicate the attorney-client privilege. Exigence contends that by ordering 114it to produce the documents requested, the court ordered the production of protected documents; thus, this court should apply the privilege and find that the circuit court abused its discretion in striking the answer and entering default judgment for failure to comply with the order.
We find that any ruling by this court on whether the requested documents are privileged would be premature, as it is clear that the circuit court intended to make further rulings with regard to any possibly privileged material. At the hearing, the court ordered Exigence to produce the documents but also noted there was “some question in here about protective stuff’ and ordered the parties to work out “some language that sort of addresses it.... If you can’t, I’ll resolve that question as well.” The court later stated: “I’m saying it will not be provided until there is some language satisfactorily that takes care of or deal[s] with questions of confidentiality, et cetera. Submit the language to me. If I agree with it, then we’ll have it provided at that time.” In its order compelling discovery, the court again stated that the discovery would be provided under seal and that opposing counsel was
ordered and directed not to disclose the information covered by the sealed documents until further orders of the Court so that the Court can permit the attorneys, if possible, to confer to see if they can agree on a protective order, and if they cannot, then the Court will deal with that subject in a separate Order at a later time.
Instead of following the order of the court, Exigence only filed its motion for reconsideration and did not provide any documents whatsoever to appellee. Therefore, we find that a final ruling on what requested documents may be privileged has yet to be reached. We also find, however, that the court erred in ordering the documents be given to opposing counsel before |1sa final determination had been made on whether the documents were privileged, and we direct the court upon remand to make such a determination before the documents are given to opposing counsel. Moreover, to the extent the answer was stricken for failure to provide these documents before their privileged status had been determined, we find such a ruling was in error.
Finally, we caution appellant’s counsel to be mindful of Ark. Sup.Ct. R. 1-5 (2010), which states that no argument, brief, or motion filed with this court shall contain language showing disrespect for the circuit court. Appellant’s briefs contain several instances of disrespectful language; for example, appellant concludes that there has never been “such a flagrant case of retaliatory abuse of discretion on the part of a circuit judge” and that it is entitled to have an “objective, rational judge overseeing the case.” We remind the bar that this court expects the members of the bar to fulfill their professional responsibilities while still maintaining the highest standards of ethical conduct. Davenport v. Lee, 349 Ark. 113, 76 S.W.3d 265 (2002). Failure to do so may result in this court striking the offending language or referring counsel to the Committee on Professional Conduct.
Reversed and remanded.
Appellee’s Motion to Dismiss denied; Appellee’s Motion for Costs denied.
HANNAH, C.J., and BROWN, J., concurring.
CORBIN, J., not participating.
. The order memorializing the court's holdings on these motions was not filed until September 15, 2009.
2. Twenty days from September 15, 2009, is October 5, 2009.
. The mandate in JDDC v. Simes was issued on November 24, 2009.
. We do , note, however, that under Rule 12(E), this court's opinion in a judicial discipline case is final when filed only if we direct that no motion for rehearing will be entertained; conversely, if this court allows the possibility of a motion for rehearing, the opinion is necessarily not final.
. Request for Production No. 12 sought "[a]ny documents in the possession and control of Exigence, LLC dealing with the subject matter of the insurance policy and whether or not the insurance company will pay any benefits under the insurance policy identified in this case concerning the litigation filed herein.” Request for Production No. 13 sought ”[a]ny and all correspondence with outside lawyers dealing with the subject matter of the insurance policy and whether or not it will pay the claim presented by the Plaintiff in this case.” Request for Production No. 16 sought "[a]ny and all correspondence to and from an attorney identified in the depositions on July 17, 2009, as follows: Mark Banovertz and James Gormley.” | [
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DONALD L. CORBIN, Associate Justice.
liAppellants Dawn and Dustin Ellis appeal the judgment of the Poinsett County Circuit Court, which was entered pursuant to a jury verdict, awarding them damages of $4480 for the taking of their leasehold interest in real property. They also appeal the separate order denying their motion for attorney’s fees. For reversal, Appellants contend the trial court erred in instructing the jury on an improper measure of damages and in denying their motion for attorney’s fees. Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup.Ct. R. 1 — 2(b)(5) (2009), as a case presenting significant issues needing clarification or development of the law, or overruling of precedent. However, we are without subject-matter jurisdiction to reach the first argument due to an untimely notice of appeal from the judgment, and therefore dismiss the portion of the appeal pertaining to the jury instruction on the measure | aof damages. The notice of appeal was timely as to the order denying attorney’s fees, and we affirm that portion of the appeal.
Appellants leased a liquor store from Don Pearson, which was located on U.S. Highway 63 between Tyronza and Marked Tree, Arkansas. The lease was dated August 10, 2000, and was for a term of one year at $1000 per-month rent, with Appellants having the option to renew the lease one year at a time for twenty-five years. Appellee, the Arkansas State Highway Commission, filed plans for a job commonly known as the Highway 118 Interchange, in which it proposed to meet the travel needs of the public by constructing and maintaining the highway as a controlled-access facility. According to Appellee, it needed the right of access to the land upon which Appellants’ liquor store was located on Highway 63 for construction and maintenance of the eontrolled-access interstate facility. According to Appellants, once construction was complete, their liquor store would be landlocked.
In June 2004, Appellants filed a complaint for an injunction to prevent Appellee from commencing construction upon their leased premises or otherwise taking their leasehold or |saccess rights until Appellee had deposited into the court registry an amount sufficient to ensure the payment of just compensation. Appellee moved to dismiss the complaint based on grounds of sovereign immunity, improper venue, and deficient service of process. After holding a hearing, the circuit court denied the motion to dismiss and stayed the proceedings to allow Appellee to seek a writ of prohibition in this court. This court denied without prejudice the petition for writ of prohibition or writ of certiorari and issued the mandate on November 18, 2004.
In December 2004, Appellee answered Appellants’ complaint for injunction, and then also filed a complaint and a declaration of taking against Pearson, the owner of the realty, estimating just compensation for the taking of Pearson’s approximate five acres to be $215,250. On February 1, 2005, Appellee amended its complaint and declaration of taking to name Appellants as defendants, but did not provide an estimate of just compensation for the taking of their unrecorded leasehold interest.
On February 7, 2005, Appellants moved to consolidate the injunction suit with the condemnation action. The circuit court granted the consolidation, and the issue of just compensation for the taking of both Pearson’s and Appellants’ interests in the subject property was tried to a jury in May 2008. At trial, Appellants presented testimony from an appraiser who stated that the market value of their lease before the taking was $100,000, and after the taking was zero. Ms. Ellis testified that she valued her leasehold at $250,000 to $300,000. |4Appellee’s appraiser testified that he had conducted a study of comparable market-rental data and determined that Appellants were paying market rent. Appellee’s appraiser stated that he therefore concluded that Appellants did not have a leasehold bonus that would be a compensable leasehold interest. Both parties proffered jury instructions on what each contended was the proper measure of damages for the taking of Appellants’ leasehold. The trial court gave Appellee’s instruction over Appellants’ objection, and the jury awarded Appellants $4480 in just compensation.
Judgment was entered pursuant to the jury’s verdict on June 6, 2008. Three days later, Appellants filed a motion for attorney’s fees. On November 4, 2008, the circuit court held a hearing on the motion for attorney’s fees and ruled ore tenus that, although Appellee and the court agreed the proposed fee was reasonable, there was no basis upon which to award the fee, and thus denied the motion for attorney’s fees. On May 20, 2009, the circuit court entered a written order incorporating its ore tenus findings of fact and conclusions of law. On June 10, 2009, Appellants filed a notice of appeal from both the June 6, 2008 judgment and the May 20, 2009 order denying Appellants’ motion for attorney’s fees.
We begin by addressing whether we have jurisdiction of this appeal. While neither party raises the issue, the timely filing of a notice of appeal is a jurisdictional issue this court is obligated to raise sua sponte. See, e.g., Tissing v. Ark. Dep’t of Human Servs., 2009 Ark. 166, 303 S.W.3d 446; see also Seay v. C.A.R. Transp. Brokerage Co., 366 Ark. 527, 237 S.W.3d 48 (2006). We must therefore determine whether Appellants have filed a timely notice of appeal.
_JjUnder Rule 4(a) of the Arkansas Rules of Appellate Procedure-Civil, a no tice of appeal must generally be filed within thirty days from the entry of the final judgment, order, or decree. However, Rule 4(b)(1) provides that, if a party files a motion for judgment notwithstanding the verdict under Rule 50(b) of the Arkansas Rules of Civil Procedure, a motion to amend or make additional findings of fact under Rule 52(b), a motion for new trial under Rule 59(a), or any other motion to vacate, alter, or amend the judgment within ten days after the entry of the judgment, the time for filing the notice of appeal is extended to thirty days after the entry of the order disposing of the last motion outstanding. If the circuit court does not grant the motion within thirty days, it is deemed denied on the thirtieth day, and the notice of appeal is due within thirty days of that date. This court has previously held that a motion for attorney’s fees is not a motion under Rules 50(b), 52(b), or 59(a) of the Arkansas Rules of Civil Procedure, nor is it a motion to vacate or otherwise alter or amend the judgment as contemplated in Rule 4(b). Stacks v. Marks, 354 Ark. 594, 127 S.W.3d 483 (2003). Thus, a pending motion for attorney’s fees does not extend the time for filing a notice of appeal from a final judgment. Id. Moreover, a motion for attorney’s fees is collateral to a trial court’s judgment on substantive issues, and therefore an order that rules on a motion for attorney’s fees does not bring up for appeal any prior judgment on the substantive issues. Id.
In the present case, we are concerned with a June 6, 2008 judgment entered pursuant to a jury verdict and a separate order denying attorney’s fees entered on May 20, 2009, but |Bonly one notice of appeal filed on June 10, 2009. Appellants stated in their notice of appeal that they were appealing “from the court’s judgment entered June 6, 2008, the court’s order denying their motion for attorney’s fees entered on May 20, 2009, and all adverse rulings during the trial of this matter, including the instructions to the jury regarding the measure of damages for the damages to their leasehold.” The judgment entered on June 6, 2008, pursuant to the jury’s verdict for Appellants in the amount of $4480, was a final order, and according to Rule 4(a), Appellants were required to file a notice of appeal within thirty days, unless they filed one of the motions enumerated in Rule 4(b) that would extend that deadline. The record before us does not reflect that Appellants filed a notice of appeal within thirty days of the June 6, 2008 judgment or that they filed any of the motions enumerated in Rule 4(b). Although there is no question that Appellants timely filed a motion for attorney’s fees on June 9, 2008, that motion is considered a collateral matter and is not one of the postjudgment motions that extends the time for filing a notice of appeal pursuant to Rule 4. Stacks, 354 Ark. 594, 127 S.W.3d 483. Thus, to be timely, Appellants’ notice of appeal was required to be filed within thirty days of entry of the judgment on June 6, 2008. It was not filed until just over a year later on June 10, 2009.
Thus, we conclude that the notice of appeal filed on June 10, 2009, was untimely as to the judgment entered slightly over a year earlier on June 6, 2008. Because we cannot acquire jurisdiction without a timely filed notice of appeal, we are without jurisdiction to hear the portion of this appeal that pertains to the judgment entered pursuant to the jury’s verdict. Stacks, 354 Ark. 594, 127 S.W.3d 483. Accordingly, we are without jurisdiction to hear Appellants’ first argument concerning the alleged erroneous jury instruction on the measure of damages to be used in this case.
The portion of this appeal that is from the order denying Appellants’ motion for attorney’s fees, however, is an entirely distinct and collateral matter. Matters that are collateral to the trial court’s judgment are left within the trial court’s jurisdiction even though an appeal has been docketed. Harold Ives Trucking, Co. v. Pro Transp., Inc., 341 Ark. 735, 19 S.W.3d 600 (2000). An award of attorney’s fees is a collateral matter. See id. Thus, while the June 6, 2008 judgment was a final, appealable order, the circuit court retained jurisdiction to consider the collateral matter of Appellant’s motion for attorney’s fees. Appellants’ June 10, 2009 notice of appeal was timely to raise the points argued under the May 20, 2009 order denying the motion for attorney’s fees. Accordingly, we do have jurisdiction to hear the portion of this appeal pertaining to the attorney’s fees.
At the hearing on the motion for attorney’s fees, Appellee conceded that Appellants’ counsel had earned his fee. And the circuit court agreed, stating that Appellants’ counsel was “well deserving of his fee in this case.” The court went on to consider counsel’s fee petition and affidavit and concluded that the $150 per-hour fee was very reasonable based on counsel’s expertise in condemnation cases. However, the circuit court also noted counsel for Appellants’ acknowledgment that attorney’s fees are generally not recoverable in condemnation cases according to Arkansas State Highway Commission v. Johnson, 300 Ark. 454, 780 S.W.2d 326 (1989). Thus, the circuit court considered whether the bad-faith exception to that general rule would apply in this case and concluded that Appellee had not acted in bad faith. Nevertheless the circuit court encouraged Appellants to “take this up” because the court thought “this might be a case right for extension of’ Wilson v. City of Fayette-ville, 310 Ark. 154, 835 S.W.2d 837, 310 Ark. 163-A, 838 S.W.2d 366 (1992) (supplemental opinion on grant of rehearing November 2,1992).
Attorney’s fees are not allowed except where expressly provided for by statute. Harris v. City of Fort Smith, 366 Ark. 277, 234 S.W.3d 875 (2006). A decision to grant or deny a motion for attorney’s fees will not be set aside absent an abuse of discretion by the trial court. Id. While the decision to award attorney’s fees and the amount awarded are reviewed under an abuse-of-discretion standard, we review factual findings by a circuit court under a clearly erroneous standard of review. Id.
On appeal, Appellants challenge the denial of fees on two grounds. First, Appellants contend the circuit court erred in finding that Appellee did not act in bad faith. Second, Appellants ask this court to rule that attorney’s fees, like compound interest, are a component of just compensation.
Appellants contend that Appellee made a deliberate decision to take their access rights and impair their leasehold without paying just compensation, and therefore ask us to reverse | flthe trial court’s finding that Appellee did not act in bad faith. Appellants argue that Appellee’s bad faith is demonstrated by its initial failure to include them and their leasehold interest in the condemnation action followed by its failure to appraise the value of just compensation for their leasehold interest. Appellants point out that it was only after Appellants obtained an injunction against Appellee and Appellee was denied a writ of prohibition in this court that Appellee included Appellants in the condemnation ac tion. Appellee responds that it investigated whether Appellants’ lease had bonus value, determined that it did not, and thus acted under a belief that Appellants were paying a high average rental rate under their lease. Appellee responds further that it therefore formed a legitimate belief that Appellants did not have a compensa-ble interest, and that is the explanation for its conduct.
Under Arkansas law, a landowner is permitted to recover a reasonable attorney’s fee, as well as other expenses, when a condemning authority fails to act in good faith in instituting and later abandoning condemnation proceedings. Des Arc Watershed Imp. Dist. v. Finch, 275 Ark. 229, 680 S.W.2d 17 (1982); Housing Auth. of the City of North Little Rock v. Amsler, 239 Ark. 592, 393 S.W.2d 268 (1965); see also Vera Lee Weaver Living Trust v. City of Eureka Springs, 62 Ark. App. 15, 969 S.W.2d 681 (1998). This is considered an exception to the general rule that attorney’s fees are not recoverable unless specifically authorized by statute. Finch, 275 Ark. 229, 630 S.W.2d 17. Furthermore, a trial court has an inherent right to require such reimbursement to the landowner when a condemning authority chooses to renege merely because the jury verdict is not to its liking, in order to protect the court’s own | mprocesses, the property owners, and the constitutional provision of just compensation. Amsler, 239 Ark. 592, 393 S.W.2d 268.
The present case is not one in which Appellee, as the condemning authority, has exercised its right to abandon condemnation proceedings; therefore, we cannot say the trial court erred in concluding Appellee had not acted in bad faith. In addition, we consider the trial court’s ruling on this issue in the present case to be one similar to a credibility call, and we therefore defer to the court’s superior position to judge the credibility of the witnesses at the hearing. Accordingly, we cannot say the trial court abused its discretion in denying the attorney’s fees in this regard.
Appellants also ask this court to extend its ruling in Wilson, 310 Ark. 163-A, 838 S.W.2d 366, to hold that attorney’s fees, like compound interest, are an element of just compensation. Appellants track the reasoning of Wilson and contend that, just as compounding interest is necessary to put the owner in as good a position pecuniarily as he would have been if his property had not been taken, requiring the condemning authority to pay the costs and attorney’s fees of a prevailing landowner is likewise necessary to make the landowner whole.
At the outset, we note that Appellants have acknowledged that this court has squarely rejected the argument that attorney’s fees are a component of just compensation in Johnson, 300 Ark. 454, 780 S.W.2d 326. This court stated as follows:
The landowners argue they are entitled to recover their attorneys’ fees as a part of their compensation. They recognize that we deny such a recovery when it is sought |T1as part of the costs of litigation in eminent domain cases, Selle v. City of Fayetteville, 207 Ark. 966, 184 S.W.2d 58 (1944), while we permit it where there is evidence of “bad faith” on the part of the condemning authority. Des Arc Watershed Imp. Dist. v. Finch, 275 Ark. 229, 630 S.W.2d 17 (1982); Housing Authority v. Amsler, 239 Ark. 592, 393 S.W.2d 268 (1965). They argue, however, that we permitted a rate of interest in excess of the statutory rate in Arkansas State Highway Commission v. Vick, 284 Ark. 372, 682 S.W.2d 731 (1985), on the theory that otherwise the landowner would not have been “made whole.”
Id. at 463-64, 780 S.W.2d at 331.
This court went on to state in Johnson that although it had some sympathy for the argument that a “landowner who is the defendant in condemnation proceedings and who did nothing to bring them on himself or herself but contests only the value of the property in question should not be required to pay for the proceedings,” this court declined to so hold in the absence of an authorizing statute. Id. While Appellants acknowledge the rule announced in Johnson, they ask us to reconsider the Johnson holding in light of our subsequent holding in Wilson that compound interest is a component of just compensation. We decline this invitation.
In Johnson, we squarely rejected the argument that article 2, section 22 of the Arkansas Constitution requires that attorney’s fees be considered a component of just compensation in order for the landowners to be “made whole.” We have not been presented with any convincing argument or citation to authority to warrant reconsideration of this issue. Although Appellants do cite us to Wilson, which involved the question of compound interest as a component of just compensation, they do not present us with any convincing argument that attorney’s fees should be treated the same as interest in this respect. Our reasoning in | ^Wilson for allowing compound interest was based in part on the premise that “ ‘[jjust compensation’ in the Constitutional sense has been held to include interest for the delay in payment from the date of the taking to the date of payment.” Wilson, 310 Ark. at 163-C, 838 S.W.2d at 367 (quoting Miller v. United States, 620 F.2d 812, 837 (Ct.Cl. 1980) (citing Albrecht v. United States, 329 U.S. 599, 67 S.Ct. 606, 91 L.Ed. 532 (1947))). The delay in Wilson from the date of the taking to the date of payment was approximately eleven years; that lengthy delay in which the landowner was deprived of the use of both his land and payment of just compensation presented the issue of whether compound, rather than simple, interest should be allowed as a component of just compensation.
We see nothing in our reasoning in Wilson concerning compound interest that could or should be applied to the present case, which involves attorney’s fees. When it comes to attorney’s fees, we observe that the United States Supreme Court has, as this court has, historically treated them differently than interest when determining the components of just compensation. See, e.g., Dohany v. Rogers, 281 U.S. 362, 50 S.Ct. 299, 74 L.Ed. 904 (1930) (stating that attorney’s fees and expenses are not embraced within the Fifth Amendment’s right to just compensation for land taken by eminent domain). Thus, Appellants have not presented us with any convincing argument that warrants our reconsideration of the holding in Johnson that attorney’s fees are not a component of just compensation.
The circuit court correctly followed Johnson and denied the motion for attorney’s fees in this case. We cannot say that was an abuse of discretion.
|lsIn summary, Appellants’ notice of appeal was untimely as to the judgment, and we therefore dismiss the portion of this appeal pertaining to the alleged erroneous jury instruction. The notice of appeal was timely as to the order denying attorney’s fees, and we therefore have jurisdiction to review the portion of the appeal pertaining to attorney’s fees. A circuit court has discretion in awarding attorney’s fees, and we find no abuse of that discretion in the instant case. Thus, the order denying attorney’s fees is affirmed.
Dismissed in part; affirmed in part.
. Appellants also named as defendants below Dan Flowers, individually and in his official capacity as Director of the Arkansas State Highway & Transportation Department, and Jim Gaither, individually and in his official capacity as Division Head. Appellants, however, have not pursued in this appeal any claims they raised against these parties. For simplicity, throughout this opinion we refer only to the Arkansas State Highway Commission as Appellee.
. "A controlled-access facility may be broadly described as a superhighway which motorists can enter and leave only at designated interchanges, usually some miles apart.” Ark. State Highway Comm’n v. Union Planters Nat’l Bank, 231 Ark. 907, 908-09, 333 S.W.2d 904, 906 (1960); see also Ark.Code Ann. §§ 27-68-102 and 27-68-105(c). '
. Pearson is not a party to this appeal.
. There was also a ruling below that Mr. Flowers and Mr. Gaither had not acted outside the scope of their employment, and thus attorney’s fees would not be recoverable under 42 U.S.C. § 1983. Appellants do not challenge this ruling on appeal. | [
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DONALD L. CORBIN, Justice.
liAppellant, Northport Health Services of Arkansas, LLC (Northport), appeals a judgment of the Pulaski County Circuit Court affirming a ruling of Appellee, Arkansas Department of Human Services (DHS), denying Appellant’s request for Medicaid reimbursement of certain costs, tuition, and fees associated with its employees’ enrollment in nursing school. Appellant raises five points for reversal, some of which require our interpretation of Ap-pellee’s Medical Assistance Program Manual of Cost Reimbursement Rules for Long Term Care Facilities (Manual of Cost Reimbursement Rules). Accordingly, the court of appeals certified this case to us as one involving a substantial question of law concerning the interpretation of an administrative rule. Jurisdiction is properly in this court pursuant to Ark. Sup.Ct. R. l-2(b)(6) (2009). We find no error and affirm the judgment of the circuit court.
Appellant operates four skilled nursing facilities in Arkansas known as Covington Court Health and Rehabilitation, Fayette-ville Health and Rehabilitation, Springdale Health and ^Rehabilitation, and Paris Health and Rehabilitation (the Facilities). The Facilities are licensed pursuant to the regulations of the Arkansas Office of Long Term Care. Appellee is an administrative agency of the State of Arkansas charged with, among many other things, regulating skilled nursing facilities in this state. In order to receive reimbursement from Medicaid for some of its costs, Appellant is required to submit annual cost reports to Appellee for approval pursuant to Appel-lee’s Manual of Cost Reimbursement Rules.
Appellant submitted cost reports for each of the Facilities for the reporting period from July 1, 2004 to June 30, 2005. Under the category of direct care training costs, Appellant’s cost reports sought reimbursement for tuition and expenses Appellant had paid to Facilities’ employees related to their enrollment in a nursing school program. Appellee made certain desk review adjustments to the cost reports and disallowed the tuition and expense payments as direct care training costs. Appellant timely appealed each of the desk review adjustments in the form of a consolidated appeal.
The hearing examiner held a hearing on the consolidated appeal of the desk review adjustments. Appellant argued that the tuition and expenses should be allowed under the category of direct care training costs or alternatively under the category of direct care employee fringe benefits. The hearing examiner filed a recommended decision, dated May 31, 2007, concluding that the tuition and expenses at issue were not related to the employees’ current duties at the Facilities, as required by section 3-2.M of the Manual of Cost Reimbursement Rules, and were therefore not allowable as direct care training costs. The | ^recommended decision also concluded that the tuition and expenses at issue were not allowable as employee fringe benefits because not all employees were eligible to participate in Appellant’s tuition advance program as required by section 3-2.A.3(c) of the Manual of Cost Reimbursement Rules.
Appellee adopted the hearing examiner’s recommended decision as the final agency action, and issued a final order dated July 9, 2007. Appellant filed a timely petition for judicial review in the circuit court. The circuit court held a hearing and ultimately issued a written order dated January 28, 2009, affirming Appellee’s final agency order. This appeal followed. Appellant raises five points for reversal.
Judicial review of DHS decisions is governed by the Administrative Procedure Act, specifically Ark.Code Ann. § 25-15-212(h) (Repl.2002), which provides in pertinent part that a court may reverse an agency decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency’s statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.
|tIt is well settled that this court’s review is limited in scope and is directed not to the decision of the circuit court but to the decision of the administrative agency. Cave City Nursing Home, Inc. v. Ark. Dep’t of Human Servs., 351 Ark. 13, 89 S.W.3d 884 (2002). When conducting our review, we keep in mind that administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures to determine and analyze underlying legal issues affecting their agencies. Ark. Dep’t of Human Servs. v. Schroder, 353 Ark. 885,122 S.W.3d 10 (2003).
It is not the role of the circuit courts or the appellate courts to conduct a de novo review of the record; rather, review is limited to ascertaining whether there is substantial evidence to support the agency’s decision. Ark. Beverage Retailers Ass’n v. Langley, 2009 Ark. 187, 305 S.W.3d 427. Substantial evidence is evidence that is valid, legal, and persuasive; it is evidence that a reasonable mind might accept to support a conclusion and force the mind to pass beyond speculation and conjecture. Id. The question is not whether the evidence would have supported a contrary finding, but whether it could support the finding that was made. Id. Further, it is the prerogative of the administrative agency to believe or disbelieve any witness and to decide what weight to accord witnesses’ testimony. Id.
Appellant’s first point for reversal is that Appellee erred in too narrowly interpreting the word “duties” in section 3-2.M.3 of the Manual of Cost Reimbursement Rules to require that direct care training expenses be related to the employee’s current duties in the facility. Appellant contends that this narrow interpretation was arbitrary, capricious, characterized by Ran abuse of discretion, and contrary to the plain meaning of section 3-2.M.3 which states that outside training costs are allowable when they are, among other requirements, “related to the employee’s duties in the facility.”
Section 3-2.M states as follow:
3-2 List of Allowable Costs
M. Outside training costs. These costs are limited to direct costs (transportation, meals, lodging, and registration fees) for training provided to personnel rendering services directly to the recipients or staff of individual facilities. To qualify as an allowable cost, the training must be:
1. located within the State of Arkansas or a contiguous state within 250 miles of the facility; and
2. related to recipient care; and
3. related to the employee’s duties in the facility.
Appellee responds that section 3-2.M.3 is plain and unambiguous such that when giving the words their plain and ordinary meaning, it is clear that all such training costs must be related to the employee’s current rather than future duties.
In its recommended decision, the hearing examiner stated as follows:
15. The final requirement, that the training be “related to the employee’s duties in the facility” was the requirement cited by [DHS] as making the costs nonallowable. Their position was that the trainings were not related to the employee’s duties in the facility because a CNA training to be an LPN, or an LPN training to be an RN is receiving training on duties, procedures and issues that are not specifically related to that employee’s current duties in the facility. [DHS] elicited testimony from all three witnesses to the effect that a CNA must stay within the parameters of duties allowed to be performed by a person with that level of licensure and cannot, for example, perform certain duties requiring an LPN license. The | (¡same would hold true for an LPN not performing certain duties requiring an RN license. This would apply even though they were in the process of training for the higher level of licensure. Until the LPN or RN credentials were awarded, they could not utilize their new knowledge in the workplace; therefore, [DHS] argues that those new skills and knowledge are not “related to the employee’s duties in the facility.”
17. The question at hand is whether the relationship to the employee’s duties must be to the employee’s current duties, as defined by their level of licen-sure, job title and job description, or whether that relationship to the employee’s duties in the facility can be read in a broader sense.
The facilities’ argument that the wording in Section 3.2.M does not include the word “current” is certainly correct; however, the concept of the relationship to the duties being the employee’s current duties is implied. The word “duties” engenders responsibilities and requirements that currently exist. The fact that the phrase is “the employee’s duties” makes it clear that it relates to that particular employee’s duties. It is true that if the relationship to current duties was a requirement, the word “current” could have been included. It would be equally valid, however, to argue that if training for duties not yet applicable to that employee or not yet allowable to be performed by that employee were meant to be covered, the phrase could have been written along the lines of “related to an employee’s duties in the facility” or “related to the duties of a CNA, LPN or RN,” or other such phraseology.
18. It is the finding of the Hearing Officer that the relationship must exist to the employee’s current duties as defined by their level of licensure, job title and job requirements.
This court has held that the interpretation placed on a statute or regulation by an agency or department charged with its administration is entitled to great deference and should not be overturned unless clearly wrong. Seiz Co. v. Ark. State Highway and Transp. Dep’t, 2009 Ark. 361, 324 S.W.3d 336; Cave City Nursing Home, 351 Ark. 13, 89 S.W.3d 884. Relying on the hearing officer’s recommended decision, Appellee observed that the word “current” is absent from .the rule itself, but concluded that the concept of “current” duties is 17implied because the term “duties” engenders responsibilities and requirements that currently exist. A total of three witnesses testified at the hearing, two for Appellant and one for Appellee; all three opined that section 3-2.M.3 referred to current or present duties. Based upon our reading of the rule in question, the undisputed testimony from the witnesses, and the deference afforded the agency’s interpretation of its own rule, we cannot say that Appellee’s interpretation was too narrow or that it was clearly wrong.
For the sake of its second point for reversal, Appellant assumes that the meaning of “related to the employee’s duties” in section 3-2.M.3 is limited in scope to the employee’s current duties, and contends that there is no substantial evidence to support the decision that the tuition and expenses claimed were not related to its employees’ current duties. Appellant contends there was no testimony provided that would indicate that the training or education programs at issue were limited in scope to providing nursing training only in areas beyond what that employee’s current licensure would allow the employee to provide. Rather, argues Appellant, it presented ample evidence from its director of human resources, Ms. Sebri-na Bowling, that the RN and LPN training programs are broad in scope and provide training in the subset of skills for the current certification and licensure maintained by the employee at the time of enrollment in the training program, as well as training for new skills.
Appellee responds that contrary to Appellant’s assertion, the testimony showed that the expenses at issue were not training expenses for current duties but rather education expenses | ¿related to obtaining a higher level of certification and, therefore, related to possible future duties of employees.
Our review of the record reveals the following. Lynn Burton, the program administrator over the long term care provider reimbursement unit, testified that although further education may be a good thing for patient care, it is not necessarily related to an employee’s current duties. Ms. Burton stated that although there may be some crossover in the duties of a CNA or LPN, just because an LPN is theoretically going to provide better care does not mean that the training is specifically related to current job duties. Ms. Bowling, testifying for Appellant, stated that a CNA working at a Facility can perform all of the duties of a CNA without going to nursing school, and that an LPN working at a Facility can perform all of the duties of an LPN without training to become an RN. She also stated that a CNA in nursing school could not perform LPN duties, as the CNA would not be licensed to do so and that Appellant’s school tuition program was an “investment in the future of [its] employees.”
The parties stipulated to the amounts in controversy and the total for the Facilities was $17,743. The findings of fact in the hearing officer’s recommended decision were that the supporting documentation from the Facilities was in fact for tuition, fees, and books to colleges and other entities. The hearing officer observed that until the LPN or RN credentials were obtained, an employee could not utilize their new knowledge in the workplace, and concluded that advanced training was not necessary to perform current job Rduties. We conclude that the above-recited testimony and evidence to support the finding that the nursing school expenses were than current duties.
Before moving on to Appellant’s third point for reversal, we note that in the midst of Appellant’s second point on appeal, Appellant asserts that the evidence and testimony presented concerning its tuition advance program showed such program to be consistent with one of the goals of the Medicaid reimbursement methodology—the improvement of nursing skills and staff. According to Ms. Burton’s testimony, the reimbursement methodology encourages long term care facilities to staff nurses by allowing reimbursement for salaries paid dollar for dollar up to the cap amount as direct care costs. Thus, the methodology currently at issue is for the reimbursement of nursing salaries, not for nursing education.
For its third point for reversal, Appellant again assumes for the sake of argument that we are concerned with current duties, and contends that Appellee erred in concluding that the training at issue was not necessary for its employees to perform their current duties. Here, Appellant takes issue with Appellee’s interpretation of section 3-l.F.l of the Manual of Cost Reimbursement Rules, which requires that allowable costs for reimbursement be reasonable and “necessary in the normal conduct of operations to provide recipient care in a facility.” Essentially, Appellant argues that since the employment of nurses is necessary for the operation of the Facilities, then the education expense of becoming a nurse should be an allowable cost hofor reimbursement. Appellee responds that this argument ignores the fact that the Facilities already have the requisite nurses to operate in compliance.
Section 3-l.F.l provides in relevant part as follows:
F. Definitions.
1. Allowable costs—Those expenses that are reasonable and necessary in the normal conduct of operations to provide recipient care in a facility-
(b) Necessary costs are those costs essential:
(1) to operate a long term care facility and deliver long term care in conformity with applicable federal, state, and local laws, rules, ordinances, and codes; and
2. to attain or maintain the highest practicable physical, mental, and psychosocial well being of each resident.
The hearing officer concluded that since the definition of necessary costs includes costs that are essential to the operation of a facility in compliance with all laws and regulations, “it cannot be said that this additional training and enhancement of existing job skills was essential.” We agree with Appellee that in order for Appellant to be operating its Facilities in compliance with all applicable regulations, its employees would already be licensed to perform their duties. Appellant does not cite any industry regulation that requires it to pay for the education of its nurses. Accordingly, we cannot say that Appellee’s conclusion that additional training and enhancement of existing job skills is not essential is arbitrary, capricious, or not supported by substantial evidence.
|nAs its fourth point for reversal, Appellant contends that Appellee erred in concluding that the training costs at issue were discriminatory fringe benefits because not all employees are eligible to participate in the tuition advancement program. Here, Appellant argues that all employees were offered participation in the program, though only some were determined to be eligible.
Appellee responds that we are procedurally barred from reaching the merits of this issue because Appellee took no adverse action against Appellant on these grounds. Appellee bases this contention on the fact that Appellant’s initial cost report sought reimbursement of the costs at issue solely as direct care training costs and not as direct care employee fringe benefits. We do not agree that this argument is procedurally barred. In its consolidated appeal of the desk review adjustments, Appellant sought reimbursement of the costs at issue under the alternative theory that the costs were allowable as direct care employee fringe benefits. The fringe-benefits argument was addressed at all levels of this case from that point forward and ruled upon by the hearing officer. The record reveals that Ap-pellee defended the argument below on the basis that it was not an allowable fringe benefit because not all employees received the benefit, and it was therefore a non-allowable discriminatory fringe benefit. The hearing officer agreed with Appellee’s argument that the fringe benefit was discriminatory and ruled in Appellee’s favor. When Appellee adopted the hearing officer’s recommended decision as its final order, Appellee took adverse action against Appellant on this issue. Therefore, we conclude this issue is preserved for appellate review.
li2Proceeding now to the merits of the argument, we note that pursuant to section 3-2.A.3(c) of the Manual of Cost Reimbursement Rules, to be an allowable cost, expenses related to employee benefits must be offered to all full-time non-probationary employees on an equal basis in accordance with a written employee-benefit policy. Section 3-2.A.3 further clarifies that fringe benefits offered to only certain employees within the same employee class are discriminatory and are not allowable.
Appellant argues that the clear language of section 3-2.A requires that the benefit be offered to all employees within a class, not that all employees be eligible for the benefit. Appellant points to testimony from Ms. Bowling that the tuition advance program is included in its employee handbook and that Appellant offers the program to all its employees. However, Ms. Bowling also testified that the program has an approval process whereby a Facility administrator must recommend an employee for the program.
The hearing officer made the following relevant findings of fact in its recommended decision. Appellant’s tuition advance program had five criteria. If all five were satisfied, then an application was submitted to a committee for approval. In her testimony, Ms. Bowling acknowledged that an employee could be denied the benefit of the program because he or she was a poor performer, not a good investment, or nursing was not what the employee needed to be pursuing. The hearing officer thus concluded that the testimony was uncontroverted that the benefit was not available to all employees and that the Facilities exercised discretion in choosing employees who are given the opportunity to avail themselves of this benefit.
lisThe evidence was undisputed that Appellant exercised discretion in determining which employees were offered this benefit. Appellant offered the opportunity to seek the benefit of the program to all employees, but did not, according to the undisputed evidence, offer the actual benefit of the program to all employees. Accordingly, we cannot say this decision is arbitrary, capricious, or not supported by substantial evidence.
Appellant’s fifth and final point raised in this appeal is not an argument for reversal but rather an attempt to demonstrate that it has been prejudiced by violation of a substantial right as required by the Administrative Procedure Act, section 25-15-212(h), before this court can reverse the agency’s order below. Here, Appellant contends that as a result of Ap-pellee’s alleged erroneous interpretation, Appellant’s per diem reimbursement rate was negatively impacted, therefore Appellant’s substantial rights were prejudiced. Appellant’s assertion that a per diem Medicaid reimbursement rate rises to the level of a substantial right is without any citation to authority. It is not apparent to us that such an argument is well taken. Accordingly, we do not address this argument. We will not consider an argument, even a constitutional one involving substantial rights, if an appellant makes no convincing argument or cites no authority to support it. See Hendrix v. Black, 373 Ark. 266, 283 S.W.3d 590 (2008).
In conclusion, we reiterate that an agency’s interpretation of its own rules is highly persuasive, although it is not binding on the courts. Sparks Reg’l Med. Ctr. v. Ark. Dep’t of Human Servs., 290 Ark. 367, 719 S.W.2d 434 (1986). While we may reject an agency’s | ^interpretation of its own rule if the interpretation is contrary to the plain meaning of the rule, we ordinarily uphold an agency’s interpretation of its own rule unless it is clearly wrong. See Ark. Prof'l Bail Bondsman Licensing Bd. v. Oudin, 348 Ark. 48, 69 S.W.3d 855 (2002). The question is not whether the evidence would have supported a contrary finding, but whether it could support the finding that was made. Langley, 2009 Ark. 187, 305 S.W.3d 427. While, as observed by the hearing officer, a tuition advance program is indeed a laudable program likely to result in improved skills and better patient care, we simply cannot say that such a program is subject to reimbursement under the Medicaid program given the clear language of the reimbursement rules as written. Accordingly, we affirm the denial of reimbursement of the tuition and expenses.
Affirmed.
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M. MICHAEL KINARD, Judge.
|i Michelle Lee Ingram appeals from the revocation of her probation on the underlying charge of forgery in the second degree. lipón revocation, appellant was sentenced to five years’ imprisonment. For reversal, appellant argues that her due-process rights were violated at the revocation hearing, that the court failed to place her under oath at the hearing, and that the court erred in sentencing her because there was no evidence against her. We affirm.
Appellant pleaded guilty to forgery in the second degree, and she was sentenced to three years’ probation in an order filed January 31, 2006. She was ordered to pay $150 in court costs, $500 in restitution to Benton County, and $2,677.65 in victim restitution at a rate of $55 per month, which included a $5 monthly collection fee. Conditions of appellant’s probation included that she not use any controlled substance, that she submit to ^random drug tests, that she report as directed to her supervising officer, that she maintain gainful employment at all times, and that she pay restitution in regular monthly payments.
Appellant has had a series of problems complying with the conditions of her probation. The State first filed a revocation petition on February 5, 2007, alleging that appellant had tested positive for methamphetamine on several occasions; marijuana was found at her house during a home visit; she refused to submit to drug testing on two occasions; failed to report as directed to her probation officer; failed to maintain stable employment; failed to complete the substance abuse class recommended by her probation officer; failed to pay fines, fees, and costs as ordered by the court; and failed to notify her supervising officer of a residence change. An affidavit by appellant’s probation officer regarding the alleged violations was filed the same day. An order filed February 7, 2007, indicates that appellant admitted the violations. Appellant was ordered to report and take drug tests weekly. A hearing was set for March 12, 2007.
The record reflects that appellant did not appear on March 12, and a summons was issued for her to appear on March 26, 2007. Appellant appeared on March 26 and again on May 14, 2007. On August 13, 2007, the court dismissed the State’s petition to revoke, noting that appellant had “reported clean since February.”
The State filed another petition for revocation on June 10, 2008, alleging that appellant had failed to report to her probation officer or pay probation fees as ordered. An affidavit from appellant’s probation officer was also filed. A hearing was set for September |s2, 2008, and appellant “called in — very sick.” The hearing was reset for September 8, and appellant appeared on that date with her attorney and admitted the violations. Appellant explained her violations by stating that she had complications from pregnancy and caregiving responsibilities for a mother-in-law with advanced Alzheimer’s disease and five children, making it impossible for her to report during business hours. The court declined to revoke her probation at that time, and another hearing was set for November 10, 2008. The State filed an amended petition for revocation on September 17, 2008, alleging that appellant had failed to report to her probation officer as ordered; failed to pay fines, fees, costs, and probation fees as ordered; failed to maintain employment; and had misled the court during the September 8, 2008 hearing by stating that she was currently employed at On the Border restaurant. Attached were the following three exhibits: (1) an affidavit of appellant’s probation officer, which stated that appellant had only reported twice since her last revocation hearing and that appellant was currently $525 in arrears and had not made a payment since October 2006; (2) a payment ledger; and (3) a letter from a corporate investigator at Brinker International stating that appellant had not worked for On the Border since she was investigated for “unusual activity” (suspected theft) in late July 2008 and terminated after she admitted to various policy violations.
The State filed a second amended petition for revocation of appellant’s probation on October 9, 2008. In this petition, the State alleged that appellant had failed to report as directed to her probation officer (referencing the affidavit filed June 10, 2008); that she had |4failed to pay probation fees as ordered by the court (referencing the affidavit filed June 10, 2008); that she had failed to maintain stable employment (referencing Exhibit C of the State’s amended petition filed September 17, 2008); that she “misled” the court on September 8, 2008, when she stated that she was currently employed at On the Border restaurant in Rogers working 50+ hours per week, when in fact she had not been employed there since July 25, 2008 (referencing Exhibit C of the State’s amended petition filed September 17, 2008); and that on September 23, 2008, she attempted to falsify/adulterate a drug test.
The revocation hearing was held on October 27, 2008. At the hearing, the court began by reading the State’s petition and asking whether appellant admitted or denied the alleged violations. As to the failure-to-report violation, appellant admitted that she had missed three meetings but asserted that she had telephoned several times during that time period. As to the failure to pay, appellant admitted that she had failed to pay probation fees and attempted to explain it by saying that her probation officer told her she did not have to pay until the end of probation. As to the failure-to-maintain-employment allegation, appellant denied that she intentionally misled the court during the previous hearing. The allegation of attempting to falsify a drug test was discussed, and then a recess was taken so that the judge could review the transcript of the September hearing. Following the recess, the judge stated that appellant had lied to him in the September hearing when she told him that she was working at On the Border when in fact she had | Bnot worked there in months. The court asked if there was anything appellant wished to say before he pronounced sentence, and appellant was then given the opportunity to testify. Following her testimony, the State introduced into evidence the written account of the incident in which the vial of yellow liquid was found on appellant at the jail. The court revoked appellant’s probation and sentenced her to five years in the Department of Correction, with credit for forty-five days served. Appellant filed a timely notice of appeal.
In a probation-revocation hearing, the State must prove its case by a preponderance of the evidence. Haley v. State, 96 Ark. App. 256, 257-58, 240 S.W.3d 615, 617 (2006). A trial court may revoke a defendant’s probation if it finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his probation. Ark.Code Ann. § 5-4-309(d) (Supp.2009); Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001). The State bears the burden of proof, but need only prove that the defendant committed one violation of the conditions. Haley, supra. When appealing a revocation, the appellant has the burden of showing that the trial court’s findings are clearly against the preponderance of the evidence. Id. Evidence that is insufficient for a criminal conviction may be sufficient for the revocation of probation or suspended sentence. Id. Since the determination of a preponderance of the evidence turns on questions of credibility and the weight to be given testimony, we defer to the trial judge’s superior position. Id.
[For her first argument on appeal, appellant contends that her due-process rights were violated because she was denied a hearing before the court announced that it would sentence her, the court failed to require the State to present testimony or evidence, the court failed to hold the State to its burden of proof, the court found her guilty in the absence of any evidence advanced by the State, and the court heard the case at the arraignment on a second amended petition to revoke probation. The State is correct in this case when it argues that these due-process arguments are not preserved for appellate review. Appellant never objected or raised a due-process argument below. Even constitutional arguments must be raised to the trial court in order to be preserved for appellate review. See, e.g., Cheshire v. State, 80 Ark. App. 327, 95 S.W.3d 820 (2003).
Even if the argument were preserved, it would fail. Here, appellant admitted to more than one violation. Through her attorney, appellant admitted that she “missed three meetings” with her probation officer, that she failed to make payments as ordered, and that she had not been employed in months. There is no need for the State to introduce further evidence where the defendant admits to the alleged violations. Furthermore, only one violation is necessary for the revocation of probation or suspended sentence. Richardson v. State, 85 Ark. App. 347, 157 S.W.3d 536 (2004). Appellant admitted to three violations.
For her second point on appeal, appellant contends that the trial court erred in failing to place her under oath prior to her statement before the court and instead merely stating that she was under oath. Again, this argument is not preserved for appellate review |7because appellant failed to raise it below. If the merits were reached, we would still affirm on this point. Appellant cites Arkansas Rule of Evidence 603, which requires that every witness shall be required to declare that he will testify truthfully. However, the Rules of Evidence do not apply to revocation proceedings. Ark. R. Evid. 1101(b)(3). Furthermore, appellant fails to persuade us that she suffered prejudice as a result.
For her third and final point, appellant challenges the sufficiency of the evidence supporting the revocation decision. Under the standard of review outlined above, the evidence was sufficient for the circuit court to revoke appellant’s probation. Appellant admitted to more than one violation, and her own admission amounts to substantial evidence to support the revocation. While appellant offered excuses for her violations, the trial judge was not required to believe her or excuse her failure to comply with the conditions of her probation. See, e.g., Jones v. State, 52 Ark. App. 179, 916 S.W.2d 766 (1996). In fact, the circuit court gave very little weight to appellant’s explanations, stating that it was “almost impossible ... to believe anything” she said. We defer to the fact-finder on issues of credibility. McChristian v. State, 70 Ark. App. 514, 20 S.W.3d 461 (2000). We hold that the trial court’s findings are not clearly against the preponderance of the evidence.
Affirmed.
ROBBINS and HENRY, JJ., agree.
. Pursuant to Ark.Code Ann. § 5-37-201, forgery in the second degree is a Class C felony. | [
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PER CURIAM.
[In 2009, appellant Diana Nichole Robertson was found guilty by a jury of capital murder, aggravated robbery, and arson. An aggregate sentence of life imprisonment without parole was imposed. We affirmed. Robertson v. State, 2009 Ark. 430, 347 S.W.3d 460.
On November 9, 2009, appellant filed in the trial court the following pro se pleadings: two petitions for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37.1 (2010); two motions for transcript for Rule 37.1 proceedings; a motion for reconsideration of order entered July 25, 2009; a petition for reduction of sen tence pursuant to Arkansas Code Annotated § 16-90-111 (Repl.2006); a petition to correct sentence imposed in an illegal manner pursuant to § 16-90-111. The trial court denied all seven pleadings in one order. Appellant lodged an appeal here and now seeks by motion an extension of time to file her brief-in-chief.
We do not address the merits of the motion because it is clear from the record that appellant could not prevail on appeal. Accordingly, the appeal is dismissed, and the motion is moot. An appeal from an order that denied a petition for postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. Carter v. State, 2010 Ark. 231, 364 S.W.3d 46 (per curiam); Goldsmith v. State, 2010 Ark. 158, 2010 WL 1253187 (per curiam); Watkins v. State, 2010 Ark. 156, 362 S.W.3d 910 (per curiam); Meraz v. State, 2010 Ark. 121, 2010 WL 844885 (per curiam); Smith v. State, 367 Ark. 611, 242 S.W.3d 253 (2006) (per curiam).
First and Second Petitions Pursuant to Rule 37. 1
Appellant filed two Rule 37.1 petitions, but the court correctly considered only the first one filed. All grounds for postconviction relief must be raised in the original petition filed in the trial court, and there may be no subsequent Rule 37.1 petition unless the first petition was denied without prejudice. Ark. R.Crim. P. 37.2(b) (2010); Kemp v. State, 2009 Ark. 631, 2009 WL 4876473 (per curiam); McCuen v. State, 328 Ark. 46, 941 S.W.2d 397 (1997); Ruiz v. State, 280 Ark. 190, 655 S.W.2d 441 (1983) (per curiam). The second petition filed appears to have repeated the claims raised in the first. Nevertheless, as the court denied the first petition without granting leave for a second petition to be considered, the court was not required to address the second petition in any way.
In an appeal from a trial court’s denial of postconviction relief on a claim of 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. Carter, 2010 Ark. 231, 364 S.W.3d 46; Watkins, 2010 Ark. 156, 362 S.W.3d 910; see Jammett v. State, 2010 Ark. 28, 358 S.W.3d 874 (per curiam). Actual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. State v. Barrett, 371 Ark. 91, 263 S.W.3d 542 (2007). Under the Strickland test, a claimant must show that counsel’s performance was deficient, and the claimant must also show that the deficient performance prejudiced the defense to the extent that the appellant was deprived of a fair trial. Walker v. State, 367 Ark. 523, 241 S.W.3d 734 (2006) (per curiam). With respect to the requirement that prejudice be established, a petitioner must show that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. Watkins, 2010 Ark. 156, 362 S.W.3d 910; Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Sparkman, 373 Ark. 45, 281 S.W.3d 277.
Appellant divided the Rule 37.1 petition into six sections, but many of the allegations overlap, and allegations of ineffective assistance of counsel are raised throughout. After a review of all assertions in the entire petition, it is clear that appellant failed to provide factual substantiation for the claims of ineffective assis tance of counsel sufficient to demonstrate that the defense was prejudiced by. any particular conduct on the part of counsel. The allegations are conclusory. in nature without explanation of how any act of counsel prejudiced the |4defense. As an example, appellant contended that counsel did not communicate with her sufficiently prior to trial, but she does not point out what any further communication would have produced that would have changed the outcome of the trial. She also alleged that counsel did not object to hearsay testimony or see to it that the jury was instructed on lesser-included offenses without citing the grounds on which counsel could have made a meritorious objection to hearsay or the grounds for a jury instruction on a lesser-included offense. Without a showing that counsel’s alleged errors were prejudicial, such claims are not grounds for relief under Rule 87.1. Carter, 2010 Ark. 231, 364 S.W.3d 46 (citing Watkins, 2010 Ark. 156, 362 S.W.3d 910). Furthermore, conclusory claims of ineffective assistance of counsel, no matter how numerous, do not add up to a showing of incompetence of counsel under the Strickland standard. Where, as in the case before us, a convicted defendant alleges many instances of ineffective assistance of counsel, at least one error standing alone must meet the standard of Strickland for the defendant to be successful. See Polivka v. State, 2010 Ark. 152, 362 S.W.3d 918 (per curiam). This court does not recognize an ineffective-assistance-of-counsel claim based on the cumulative effect of counsel’s errors. Echols v. State, 354 Ark. 530, 127 S.W.3d 486 (2003); Huddleston v. State, 339 Ark. 266, 5 S.W.3d 46 (1999).
We note that appellant cited several disciplinary rules governing the conduct of attorneys, alleging that her counsel violated those rules. Unless there is a showing that violating a particular rule rendered counsel ineffective within the guidelines of Strickland, however, there can be no finding of ineffective assistance of counsel that warrants granting Upostconviction relief. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004).
There is a strong presumption that trial counsel’s conduct falls within the wide range of reasonable 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. McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per curiam) (citing Johnson v. State, 2009 Ark. 460, 344 S.W.3d 74). Appellant fell short of meeting her burden of demonstrating that counsel was ineffective.
In addition to contending that her attorney was ineffective, appellant argued in conclusory fashion that she was denied due process of law and a fair trial on the grounds that her arrest was illegal, that the prosecution asked leading questions and withheld evidence from the defense, that she was not allowed personal access to evidence, and that the prosecution and the court allowed witnesses to give perjured testimony. She further contended that the trial court made errors by admitting certain evidence and permitting jurors to sit on the jury who had served on juries in similar cases within the previous two years. She also argued that some witnesses were not credible and that the evidence adduced at trial was insufficient to sustain the judgment of conviction. All of the claims could have been, or were, raised at trial. Allegations of trial error that could have been raised at trial or on appeal may not be raised in Rule 37.1 proceedings. Viveros v. State, 2009 Ark. 548, 2009 WL 3681672 (per curiam); Taylor v. State, 297 Ark. 627, 764 S.W.2d 447 (1989) (per curiam). An issue already set- tied at trial or on direct appeal | fidoes not provide a ground of postconviction relief. Hunes v. State, 2010 Ark. 70, 2010 WL 502969 (per curiam); O’Rourke v. State, 298 Ark. 144, 765 S.W.2d 916 (1989) (per curiam); Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981) (per curiam). Likewise, an assertion that is a direct challenge to the sufficiency of the evidence is not cognizable under Rule 37.1. Bell v. State, 2010 Ark. 65, 360 S.W.3d 98 (per curiam); see Sanford v. State, 342 Ark. 22, 25 S.W.3d 414 (2000) (citing O’Rourke, 298 Ark. 144, 765 S.W.2d 916).
Appellant further contended in the Rule 37.1 petition that she was mentally incompetent but was not given a psychiatric examination. As support for the claim that her mental condition was a ground for Rule 37.1 relief, appellant recited her history of mental problems, the fact that she was pregnant and emotionally fragile at trial, and a history of being abused by her co-defendant.
A petitioner who asserts incompetence for the first time in a petition for postconviction relief has the heavy burden of demonstrating with facts that he or she was not competent at the time of trial. Matthews v. State, 332 Ark. 661, 966 S.W.2d 888 (1998) (per curiam). Even though a petitioner can document a history of mental illness or show that counsel could have argued incompetence, that showing, without more, is not sufficient to support post-conviction 17relief. See Henry v. State, 288 Ark. 592, 708 S.W.2d 88 (1986). Here, appellant only provided conclusory statements without substantiation that did not demonstrate any error on the part of counsel or the court that would warrant post-conviction relief.
Finally, appellant contended that there was prosecutorial misconduct at her trial. Claims of prosecutorial misconduct are not cognizable in Rule 37.1 proceedings. Dunlap v. State, 2010 Ark. 111, 2010 WL 746185 (per curiam) (citing Heyward v. State, 367 Ark. 18, 238 S.W.3d 24 (2006)).
Motions for Transcript for Rule 37. 1 Proceedings
Appellant filed two motions seeking a copy at public expense of the transcript of her trial to support the allegations contained in the Rule 37.1 petitions that she had filed. The only ground for the motions was “see attached,” an apparent reference to the allegations contained in the Rule 37.1 petitions. Even if the court went outside the motions for transcript and considered the claims in the Rule 37.1 petitions, which it was not obligated to do, appellant did not state a compelling need for a copy of the transcript inasmuch as there was no ground to grant relief under the rule. Unless a petitioner under the rule can cite a compelling need for a copy of the transcript, the trial court is not obligated to grant a motion for transcript. See Norris v. State, 2010 Ark. 230, 2010 WL 1932197 (per curiam).
Petitions for Reduction of Sentence and for Correction of an Illegal Sentence Pursuant to Arkansas Code Annotated § 16-90-111
In the two petitions for relief filed by appellant pursuant to Arkansas Code Annotated § 16-90-111, appellant also referred to “see attached” as the grounds for the petitions. The | ^appellant thus appears to have desired the court to consider the claims raised under Rule 37.1 as the bases for granting the petitions under the statute. Arkansas Code Annotated § 16-90-111 has been superseded to the extent that it conflicts with the time limitations for postconviction relief under Rule 37.1. DeLoach v. State, 2010 Ark. 79, 2010 WL 569742 (per curiam) (citing Womack v. State, 368 Ark. 341, 245 S.W.3d 154 (2006) (per curiam)). A claim that a sentence is illegal must be raised in a petition filed in the trial court within sixty days of the date the mandate is issued following affirmance of the judgment in accordance with Rule 37.2(c). See Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994). The time limits set out in Rule 37.2(c) are jurisdictional in nature, and the circuit court may not grant relief on an untimely petition for postconviction relief. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989).
Motion for Reconsideration
With respect to the “motion for reconsideration” filed by appellant on November 9, 2009, it appears that it was intended to be in the nature of a motion for new trial. While the motion referred to an order entered July 25, 2009, there was no order in the record entered on that date. Appellant was, however, found guilty on July 25, 2008, and the allegations in the motion for reconsideration pertained to trial error and ineffective assistance of trial counsel, making it likely that she intended for the motion to pertain to her conviction. If so, Rule 33.3(b) of the Arkansas Rules of Criminal Procedure (2010) required that a motion for new trial be brought within thirty days of the date the judgment was entered. The motion was not timely filed, and thus merited no action by the court. See Britt v. State, 2009 Ark. 569, 349 S.W.3d 290 (per curiam).
Appeal dismissed; motion moot.
CORBIN, J., not participating.
. Appellant argued on direct appeal that the trial court erred in declining to instruct the jury on the affirmative defense of duress with respect to the charge of capital murder; that the trial court erred by declining to suppress her December 5, 2007 videotaped statement and any evidence obtained from it because she had invoked her right to counsel before the statement was made; and that the trial court erred in allowing the State to introduce inadmissible hearsay evidence. | [
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Robert L. Brown, Justice.
This is a one-brief appeal. Appellant Jessie Johnson appeals from the circuit court’s order (1) denying his motion for summary judgment and (2) granting the motion of appellee Alvin Simes, thereby dismissing Johnson’s complaint against Simes. The court of appeals certified this case as involving a significant issue needing clarification of the law regarding Rule 6(c) of the Arkansas Rules of Appellate Procedure - Civil. Johnson asserts nineteen “issues” to be considered on appeal. We affirm the order of the circuit court due to an insufficient record filed by Johnson.
The facts are these. Johnson resides in West Helena, and Simes is an attorney who practices by himself with an office in Forrest City. On May 8, 1997, an explosion and fire occurred at BPS’s agriculture chemical packaging plant in West Helena. A class-action complaint was subsequently filed on behalf of those individuals who suffered injury due to exposure to toxic chemicals. Johnson contends that he “signed up” as one of the class members with Simes as his attorney. Simes has stated that he was in law partnership with James and Andre Valley practicing under the firm name of Simes & Valley at the time Johnson sought representation. Thereafter, Simes & Valley dissolved, and James and Andre Valley joined the Wilson Law Firm, creating the law firm of Wilson & Valley. Simes asserts that Dion Wilson, who was an attorney with Wilson & Valley, filed the class action complaint against BPS and that Johnson was designated as “John Doe #1.” Simes argued to the court that he never entered an appearance as an attorney for anyone in the BPS case or had any contract to represent Johnson in the matter.
On April 1,2002, Johnson filed a complaint in circuit court and, according to the circuit court’s docket notation, issued summonses to defendants Dion Wilson, Don Trimble, and Alvin Simes. In the complaint, Johnson alleges that he employed Wilson, Trimble, and Simes to represent him in the settlement arising from the BPS chemical explosion in 1997. Johnson alleges that the attorneys fraudulently mishandled his representation by removing his name from the settlement list in bad faith. Johnson alleges that others who “signed up” for representation were paid, but he was not. Johnson asks for $5,000,000 in damages. According to the docket' sheet, Wilson and Trimble apparently filed an answer to the complaint and moved to dismiss it under Arkansas Rule of Civil Procedure 8(a). The motion to dismiss and answer are not in the record.
Later, Johnson moved the circuit court to add Simes as a defendant to his complaint and also moved for production of documents concerning the BPS settlement. The circuit court held a hearing on Johnson’s motions. The motions and a transcript of the hearing are not in the record. The circuit court granted Johnson’s motion to add Simes as a party, but the record does not contain the circuit court’s ruling on Johnson’s other motion. Johnson then apparently filed a motion for a hearing concerning Simes’s involvement with the case, but this motion for a hearing is not in the record.
Johnson next sent a letter to the circuit judge asking for summary judgment due to Simes’s failure to respond and because there are no disputed facts at issue. This summary-judgment letter was read by Johnson into the record at his hearing and is included in the hearing’s transcript, but the letter itself is not in the record. On August 1, 2003, the circuit court held a hearing on Wilson’s and Trimble’s motion to dismiss. Wilson, Trimble, and Johnson appeared at the hearing, following which the court issued an order granting the motion and dismissing without prejudice Johnson’s complaint against them. The circuit court subsequently held a hearing on Johnson’s summary-judgment letter/motion during which Johnson read his letter to the court. At the hearing, Simes presented to the court an answer to Johnson’s complaint and a motion to dismiss the complaint with prejudice. Neither Simes’s answer nor his motion to dismiss are in the record. During the hearing, Simes asserted that he was never served with a complaint or an amended complaint and that he never had an attorney-client relationship with Johnson.
Also at the hearing on the motion, Johnson introduced a letter into evidence from Simes to the executive director of this court’s Committee on Professional Conduct in which Simes explained the breakup of Simes & Valley and referred to the time when Johnson “employed” him “to represent him regarding matters arising from the BPS explosion.” In an attempt to prove service of his complaint on Simes, Johnson introduced into evidence a summons form dated July 1, 2003.
The circuit court entered an order dismissing Johnson’s complaint against Simes. Johnson filed a notice of appeal from this order and tendered his record on appeal to the Supreme Court Clerk. He then filed a pro se motion with this court to proceed informa pauperis. This court denied Johnson’s motion to proceed informa pauperis and found that he had faded to demonstrate that he had a colorable cause of action required by Rule 72 of the Arkansas Rules of Civil Procedure, because he merely asserted that an injustice will be done if he is not allowed to proceed without paying costs. See Johnson v. Simes, 04-77 (Ark. Mar. 4, 2004) (per curiam).
Johnson then paid $100 to file his appeal, lodged his record, and tendered a brief. The Supreme Court Clerk returned Johnson’s brief to him and informed him that the clerk was not permitted to file his brief, because it lacked an abstract and Addendum and otherwise failed to conform with the Supreme Court’s rules. Johnson tendered another brief, and it was returned to him, because it also lacked an abstract and Addendum and failed to conform to this court’s rules. Johnson next filed a pro se motion for leave to file a non-conforming brief and tendered the same brief as had been submitted before. The court of appeals denied Johnson’s motion without comment, and Johnson filed a pro se “motion for extension of time to put forth addendum to the appeal brief as appendix part abstract appendix of records/records of the case.” The court of appeals granted the extension until June 25, 2004. On June 7, 2004, Johnson filed his brief.
Simes did not file an Appellee’s brief. Five days after Simes’s response was due, Johnson filed a pro se motion to expedite his appeal, which the court of appeals granted. The court of appeals then dismissed Johnson’s appeal without prejudice on the basis that it was not an appeal from a final order. See Johnson v. Simes, CA04-77 (Ark. App. Sept. 29, 2004) (per curiam). Specifically, the court of appeals noted that the record did not include an order dismissing the other two defendants, Wilson and Trimble, and that the circuit court had not issued a Rule 54(b) certification to allow an immediate appeal.
Thereafter, Johnson filed a pro se motion to reinstate his appeal and to supplement the record. The motion included a certified copy of the circuit court’s order dismissing Johnson’s suit against Wilson and Trimble. The court of appeals denied Johnson’s motion without comment, but Johnson then filed a pro se motion for reconsideration to reinstate his appeal and to supplement the record with the circuit court’s order regarding Wilson and Trimble. The court of appeals apparently reversed itself, granted Johnson’s motion for reconsideration, and reinstated his appeal without comment. Johnson then filed a motion to expedite his appeal, and the court of appeals granted the motion. On January 26, 2005, the court of appeals certified the case to this court for purposes of clarifying a significant issue involving Arkansas Rule of Appellate Procedure — Civil 6(c).
Johnson essentially argues three issues on appeal, although he raises nineteen points. He urges, first, that the circuit court erred in granting summary judgment to Simes, because Johnson presented clear and conclusive evidence that Simes was employed by Johnson to represent him in the BPS explosion matters. He argues, secondly, that the circuit court erred in dismissing his complaint, because the court knew that Simes committed perjury and failed to act. Thus, the judge denied Johnson due process under the Fourteenth Amendment to the United States Constitution. Finally, Johnson asserts that the circuit judge was biased against him. Again, Simes has filed no Appellee’s brief in response.
An order denying a motion for summary judgment is ordinarily not an appealable order. See, e.g. Southern Farm Bureau Cas. Ins. Co. v. Daggett, 354 Ark. 112, 118 S.W.3d 525 (2003). However, such an order is appealable when it is combined with a dismissal on the merits that effectively terminates the proceeding below. See id. Accordingly, the circuit court’s order combining the denial of summary judgment and the dismissal of the instant case is an appealable order.
The court of appeals has certified this case to this court to clarify the law on whether affirming a case is appropriate when the record is incomplete but the abbreviated record was not objected to by the opposing party, as provided under Rule 6(c) of the Arkansas Rules of Appellate Procedure - Civil. Rule 6 of the Arkansas Rules of Appellate Procedure - Civil reads in pertinent part:
(a) Composition of Record. The record shall be compiled in accordance with the rules of the Arkansas Supreme Court and Court of Appeals.
(b) Transcript of Proceedings. ... If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or contrary thereto, he shall include in the record a transcript of all evidence relevant to such finding or conclusion. If the appellant has designated less than the entire record or proceeding, the appellee, if he deems a transcript of other parts of the proceedings to be necessary, shall, within ten (10) days after the filing of the notice of appeal, file and serve upon the appellant (and upon the court reporter if additional testimony is designated) a designation of the additional parts to be included. The appellant shall then direct the reporter to include in the transcript all testimony designated by appellee.
(c) Record to be Abbreviated. . . . Where parties in good faith abbreviate the record by agreement or without objection from opposing parties, the appellate court shall not affirm or dismiss the appeal on account of any deficiency in the record without notice to appellant and reasonable opportunity to supply the deficiency. Where the record has been abbreviated by agreement or without objection from opposing parties, no presumption shall be indulged that the findings of the circuit court are supported by any matter omitted from the record.
(e) Correction or Modification of the Record. If any difference arises as to whether the record truly discloses what occurred in the circuit court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the circuit court, either before or after the record is transmitted to the appellate court, or the appellate court on proper suggestion, or on its own initiative, may direct that the omission or misstatement shall be corrected, and if necessary, that a supplemental record be certified and transmitted. All other questions as to form and content of the record shall be presented to the appellate court.
Ark. R. App. P. - Civ. 6(a)-(c), (e).
In its certification, the court of appeals urges this court to consider its holding that this court will affirm when an appellant fails to bring up a sufficient record to demonstrate error, even when the appellant has designated a partial record. See, e.g., In Re: Estates of Seay v. Quinn, 352 Ark. 113, 98 S.W.3d 821 (2003) (motion upon which final order was based not in record; issues outside record not considered on appeal); Dodge v. Lee, 352 Ark. 235, 100 S.W.3d 707 (2003) (this court would not consider appellant’s counterclaim on appeal because it was not included in the record; thus, record was insufficient and this court affirmed). In this regard, the court of appeals asks this court to clarify a perceived conflict between cases in which we have affirmed due to a deficient record and Rule 6(c), which was copied from superseded Ark. Stat. Ann. § 27-2127.6 (Repl. 1962), and allows the appellant notice and a reasonable opportunity to correct a record deficiency. See, e.g., Winters v. Elders, 324 Ark. 246, 920 S.W.2d 833 (1996); Young v. Young, 316 Ark. 456, 872 S.W.2d 856 (1994). Specifically the court of appeals focuses on this provision in Rule 6(c):
Where parties in good faith abbreviate the record by agreement or without objection from opposing parties, the appellate court shall not affirm or dismiss the appeal on account of any deficiency in the record without notice to appellant and reasonable opportunity to supply the deficiency.
Ark. R. App. P. - Civ. 6(c).
We disagree that the facts of this case fall within the ambit of Rule 6(c). There is nothing before us to indicate that Simes, as appellee, in any way agreed to an abbreviated record or acquiesced in the fifing of the same. Indeed, there is nothing to suggest that Simes ever saw the record filed in this case, as there is no indication that he was notified of its filing. More importantly, Simes did not “check out” the record in this case or file an Appellee’s brief. These facts fall abysmally short of meeting the standard that Simes “in good faith” agreed to the abbreviated record or refrained from objecting to it. The latter circumstance at least suggests that Simes acquiesced in the truncated record. Here, there is nothing to suggest that.
Moreover, Arkansas Rule of Appellate Procedure - Civil 3(e) requires that an appellant’s notice of appeal shall designate the contents of the record on appeal and Rule 3(f) requires service of the notice of appeal to the opposing party. Rule 3(g) has additional notice requirements if an abbreviated record is contemplated, but Rule 3(g) was not followed by Johnson in this case. Thus, Simes was not put on notice that an abbreviated record was involved.
We will not recapitulate every motion and ruling absent from Johnson’s record. Suffice it to say, he did not include in the record his motion for summary judgment, which was in the form of a letter to the court, and Simes’s motion to dismiss his complaint. Since these are the two motions decided by the circuit court in its order, which is the subject of this appeal, their inclusion was imperative to our review. We, therefore, affirm the circuit court’s order due to Johnson’s failure to bring before this court a record exhibiting circuit court error. See In Re: Estates of Seay v. Quinn, supra; Dodge v. Lee, supra.
Affirmed.
It is not clear why this motion to add Simes as a party was necessary, since Simes was an original party defendant, according to the docket sheet.
We recognize that Johnson read from the summary-judgment letter/motion at the hearing, but that is not a substitute for having the actual letter in the record. | [
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Robert L. Brown, Justice.
Appellants Fred’s, Inc. and its insurer, Royal & Sun Alliance Ins. Co., appeal from an opinion and order of the Workers’ Compensation Commission, which found that appellee Deborah Jefferson sustained a compensable injury in the course of her employment on April 25, 2002; that Jefferson remained in her healing period and was unable to earn wages from April 26, 2002 through May 27, 2002; and that Fred’s is responsible for all reasonable and necessary medical treatment that Jefferson claimed. We affirm the opinion and order of the Commission.
Deborah Jefferson lived in Osceola and worked for Fred’s from August 1997 until she was fired on June 10, 2002. She was employed as a “stock person,” which required her to “unload the trucks.” That work involved her bending and stooping and lifting objects and also pushing and pulling objects, while remaining on her feet all day.
On April 25, 2002, Jefferson’s manager asked her to retrieve some boxes from “upstairs” at the store. Jefferson attempted to comply by standing on a four-foot aluminum ladder, which collapsed while she was standing on it and caused her to land on her back on the concrete floor. Jefferson informed her assistant manager, Ruth Ware, about the accident. Ware directed her to see Dr. Brewer Rhodes.
On that same day, Dr. Rhodes diagnosed Jefferson with a contusion and strain of her spine and prescribed medication for her treatment, including Flexeril, and physical therapy for two weeks. Jefferson complied with the physical therapy, yet still complained of pain. Dr. Rhodes issued work-restriction certificates that prohibited Jefferson from returning to work until May 27, 2002. Jefferson filed a claim for workers’ compensation with Fred’s workers’ compensation insurance company, and the company denied it.
An Administrative Law Judge (ALJ) next heard Jefferson’s claim and issued an order and opinion awarding Jefferson benefits from April 26 through May 27, 2002, for temporary total disability. Fred’s appealed that order to the Commission, which affirmed the ALJ’s order by a vote of two to one. Fred’s appealed to the court of appeals, which affirmed the Commission’s order in an unpublished opinion. See Fred’s Inc. v. Jefferson, CA 04-166 (Ark. App. Sept. 22, 2004). Later, the court of appeals published a substituted opinion on denial of rehearing that also affirmed the Commission’s order and cited to the Physicians’ Desk Reference for the use of Flexeril, which was not adduced by either party in the briefs in this appeal. See Fred’s Inc. v. Jefferson, 89 Ark. App. 95, 200 S.W.3d 477 (2004).
Fred’s filed an amended petition for review with this court raising several issues, including the absence of objective medical findings to prove the injury and violation of due process because the court of appeals relied on the Physicians’ Desk Reference, although neither party had cited it, argued it, or made it part of the record. We granted the petition.
Fred’s first contends on appeal that the Commission erred in concluding that Jefferson sustained a compensable injury, because she failed to produce medical evidence supported by “objective findings,” as required by Ark. Code Ann. § 11-9-102(4) (D) (Repl. 2002). Fred’s further urges that the Commission erroneously relied on the ALJ’s speculation that medicine prescribed to Jefferson was for muscle spasms, because no physician or physical therapist reported witnessing or feeling Jefferson’s muscle spasms.
When we grant a petition for review, we consider a case as though it had been originally filed in this court. See Estridge v. Waste Management, 343 Ark. 276, 33 S.W.3d 167 (2000). We also view the evidence in a light most favorable to the Commission’s decision, and we uphold that decision if it is supported by substantial evidence. 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. Id.
A “compensable injury” is defined under the Workers Compensation Code as
An accidental injury causing internal or external physical harm to the body ... arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence!.]
Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2002). Section 11-9-102(4) of the Code further provides that a compensable injury must be established by medical evidence supported by “objective findings.” See Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2002). The Code defines “objective findings” as those “which cannot come under the voluntary control of the patient.” Ark. Code Ann. § 11 — 9— 102(16)(A)(i) (Repl. 2002).
In the case of Estridge v. Waste Management, supra, this court reversed the Commission’s denial of a claimant’s benefits and held that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. In Estridge, the claimant reported a back injury that occurred on the job to his employer and was referred to a physician, who diagnosed the claimant with low back strain and radicular pain. The physician failed to document any objective medical findings to support the diagnosis but prescribed Valium “as needed for muscle spasms.” Ultimately, the Commission denied the claimant benefits, finding that there were no objective findings to support an injury while at work.
On appeal, this court stated that muscle spasms can constitute objective medical findings to support compensability and that muscle spasms detected by someone other than a physician, such as a physical therapist, can be sufficient as well, because this is a perception of injury by someone other than the claimant. The Commission in Estridge concluded, however, that there was no observation of muscle spasms in the claimant, because the prescription for Valium “as needed for muscle spasm” was a direction and not a finding of the presence of muscle spasms. This court disagreed and said:
It was undisputed that appellant [claimant] sustained an accidental injury- at work and was diagnosed initially with back strain and received medication. What is disputed is whether appellant presented proof of objective medical evidence and whether there was a causal connection between the injury and the medical treatment. We hold that appellant did present proof of objective medical evidence and that there was a causal connection between the injury and the medical treatment, for the following reasons.
First, he was indisputably diagnosed with back strain for which he received medication after the crosstie incident. The medication was directed “as needed for muscle spasm” which the Commission dismissed as a direction to appellant rather than a medical finding. We find the Commission’s dismissal of this fact to be absurd. A doctor would not prescribe medication directed to be taken “as needed for muscle spasm” if he did not believe muscle spasms were existent.
Estridge, 343 Ark. at 281, 33 S.W.3d at 171 (emphasis in original).
In the case at bar, the ALJ found that Jefferson and Fred’s had an employee-employer relationship on April 25, 2002, and that Jefferson presented credible, unrefuted testimony about falling from the ladder at Fred’s. The ALJ further found:
Dr. Rhodes’ notes indicate on April 29, 2002, that “Ruth Ware ok’d” and the treatment was a sonulator.... Dr. Rhodes’ April 25, 2002, report reveals that the claimant “fell off ladder and back and neck landed on back on concrete floor.” ... I find this contemporaneous medical report corroborates the claimant’s account of the accident. Dr. Rhodes diagnosed the claimant with a T-L contusion/strain and prescribed Celebrex and Flexeril and physical therapy. The claimant sought emergency room care on September 30, 2002, and was complaining of muscle spasms in her back. The doctor’s notes, while difficult to read, indicate some problem with the paraspinous muscle and chugs were prescribed to include Flexeril, a muscle relaxer and pain medication.
The ALJ concluded that the “medical evidence provides the necessary requirements for objective findings.” After Fred’s appealed to the Commission, the Commission conducted a de novo review of the record and then, in a vote of two to one, affirmed the ALJ’s opinion, including all findings of fact and conclusions of law.
We agree with the ALJ’s findings and hold that substantial evidence was presented that Jefferson suffered an “accidental injury,” as defined by § ll-9-102(4)(A)(i), and that substantial evidence was presented that Jefferson’s compensable injury was established by medical evidence supported by “objective findings,” as required by § 11-9-102(4)(D). Jefferson testified that she fell from a ladder while attempting to move boxes at work. Dr. Brewer Rhodes examined Jefferson on April 25, 2002, diagnosed her with “T-L contusion/strain,” examined her “T-spine” and “L-spine,” prescribed Jefferson with Celebrex and Flexeril, and ordered that Jefferson not engage in bending or lifting more than ten pounds and that she should have a “sitting job only.”
Dr. Rhodes’s notes also reflect that on April 29, 2002, Dr. Rhodes examined Jefferson again, ordered a “sonulator” and stated that “Ruth Ware [assistant manager] OK’d” the order. His notes further state that Jefferson complained of continued pain, and he scheduled an MRI of her “L-spine.” In addition, Dr. Rhodes’s notes read that on May 9, 2002, he examined Jefferson and prescribed medication and physical therapy three times a week for two weeks. He added that Jefferson may work at a “sittingjob” without lifting, bending, or prolonged standing and that she should continue taking Celebrex. On May 15, 2002, he wrote that Jefferson should continue physical therapy.
Jefferson’s evidence of a “compensable injury” was corroborated by an emergency room record from September 30, 2002, in which it was noted that Jefferson complained of back pain and muscle spasms in her lower back from an “old injury.” The emergency room record showed that Jefferson was examined, that something was wrong with her bilateral paraspinous muscle, and that she was treated with Vistaril, Lorcet Plus, Flexeril, and Prednisone. She was also given a prescription for Celebrex.
The facts in this case are akin to those in Estridge. It is undisputed that Jefferson sustained an accidental injury at work and was diagnosed on April 25, 2002, with a back bruise and a strain of her back. As treatment, medication including Flexeril and physical therapy were prescribed. What is disputed here, as was the case in Estridge, is whether Jefferson presented proof of objective medical evidence and whether there was a causal connection between the injury and the medical treatment. This case is distinguishable from Estridge, however, in that Dr. Rhodes did not indicate specifically what the medications were for or specifically why he prescribed physical therapy. Yet, following the logic expressed in Estridge, a reasonable inference from the chronology of events is that the medication and physical therapy were pre scribed to aid Jefferson and to treat her injury. Any other construction of these events does not withstand scrutiny or pass the test of reasonableness. We affirm the Commission’s order.
Fred’s next contends that the Commission erred in awarding Jefferson temporary total disability benefits from April 25 to May 27, 2002, because Jefferson failed to present evidence that she was in her “healing period,” as defined by Ark. Code Ann. § 11-9— 102(12) (Repl. 2002), or that she was totally incapacitated from earning wages. To support these arguments, Fred’s again claims that Jefferson failed to show any objective findings of an injury and that she failed to present evidence to indicate that her pre-injury position at Fred’s was outside her work restrictions, that she was unable to secure another position at Fred’s within her restrictions, or that she would have been more capable of working after she started looking for work on June 10, 2002, than while she was employed by Fred’s.
This court has said that “temporary total disability” is that period within the “healing period” in which the employee suffers a total incapacity to earn wages. See Arkansas State Hwy. & Transp. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). Our Workers’ Compensation Code defines a “healing period” as “that period for healing of an injury resulting from an accident.” Ark. Code Ann. § 11-9-102(12) (Repl. 2002).
The ALJ found that Fred’s was responsible for all reasonable and necessary medical treatment that Jefferson pursued and that Jefferson proved by a preponderance of the evidence that she remained in her healing period and was unable to earn wages from April 26 through May 27, 2002. Specifically, the judge wrote:
In the present case, the claimant presented credible testimony about her inability to work following her April 25,2001, [sic] fall off the ladder. The record is further supplemented with medical evidence and off work slips with a May 15,2002, note from Dr. Rhodes taking the claimant off work until May 27,2002, specifically stating “no work.”... Dr. Rhodes had provided work certificates on other occasions where he had placed the claimant under limitations of “no lifting, bending or standing and only a sitting job.” The employer did not return the claimant to work with those restrictions because the nature of the claimant’s job required all those activities that the doctor had placed on restriction. I find the claimant has proven by a preponderance of the evidence that she remained in her healing period and was unable to earn wages from April 26, 2002 through May 27,2002____
Again, the Commission conducted a de novo review and adopted the ALJ’s findings of fact.
We hold that Jefferson presented substantial evidence that she was temporarily totally disabled from the time of injury until the day she was released to return to work on May 27, 2002. Specifically, Jefferson testified that her job as a stock person required her to bend, stoop, lift, push, pull, and be on her feet all day. In the past, she also worked at Fred’s at times as a cashier. However, Jefferson testified that Fred’s did not have a sitting job available during her healing period. The evidence shows that Dr. Rhodes issued a certificate on April 25, 2002, stating that Jefferson was able to return to work on April 29, 2002, but could not bend or lift anything greater than ten pounds and that she was restricted to a sitting job for three days. In addition, Dr. Rhodes certified on May 9, 2002, that Jefferson could not lift, bend, or stand, and, for a second time, limited her to a sitting job. Finally, Dr. Rhodes completed a workers’ compensation evaluation sheet on May 15, 2002, stating that Jefferson could not return to work until May 27, 2002. This is substantial evidence that Jefferson was entitled to temporary total disability benefits. We affirm the Commission on this point.
Fred’s argued to this court in its amended petition for review that the court of appeals’ reliance on the Physicians’ Desk Reference to determine the use of the drug Flexeril was extra-judicial, violated Fred’s procedural due process rights, and violated Ark. Code Ann. § ll-9-705(a)(3) (Repl. 2002), and Polk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (2001). In particular, Fred’s took issue with the following statement in the court of appeals decision, which was taken from the Physicians’ Desk Reference:
Flexeril “is indicated as an adjunct to rest and physical therapy for relief of muscle spasm associated with acute, painful musculoskeletal conditions.”
Fred’s, Inc., 89 Ark. App. at 99, 200 S.W.3d at 479 (quoting Physicians’ Desk Reference 572 (56th ed. 2002)). Fred’s underscores the fact that neither party referred to the Physicians’ Desk Reference in the briefs filed in this appeal.
We do not address this issue for the simple reason that other than raising the issue in its amended petition for review, Fred’s did not file a supplemental brief developing the issue or otherwise cite this court to relevant authority to support its position. This, we require. See Hart v. McChristian, 344 Ark. 656, 42 S.W.3d 552 (2001) (we do not consider an argument made without convincing argument or citation to authority to support it, where it is not apparent without further research that these arguments are well-taken); Matthews v. Jefferson Hosp. Ass’n, 341 Ark. 5, 14 S.W.3d 482 (2000) (this court will not consider the merits of an argument if the appellant fails to cite convincing legal authority in support of that argument). Accordingly, this issue is not preserved for our review, and we affirm on this point. Though we do not reach this point, we do not mean by our silence to sanction implicitly the court of appeals’ citation to the Physicians’ Desk Reference, when it had not been adduced or argued by either party in the briefs.
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Donald L. Corbin, Justice.
Appellant Windell McClain appeals the order of the Desha County Circuit Court convicting him of aggravated robbery. On appeal, he argues that the trial court erred in: (1) allowing a police officer to testify about his opinion that cigarettes found in Appellant’s vehicle at the time of his arrest were those stolen from a liquor store; and (2) refusing to admonish the jury after the prosecutor improperly commented on Appellant’s failure to testify at trial. As Appellant was sentenced to life imprisonment, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(2). We find no error and affirm.
Appellant does not challenge the sufficiency of the evidence, but we will give a brief recitation of the pertinent facts in this case. On the evening of September 15, 2003, Appellant and Robert Johnson-El went to the Bottle Shop Liquor Store in McGehee and purchased some beer. After leaving the store, the men parked their car behind the store and decided to go back in and rob the store. Linda Wheless was behind the counter when the pair entered. Appellant told Johnson-El to jump across the counter to get the money. Johnson-El searched Wheless’s pockets and took some cash from her, as well as from the register. Several packages of Kool cigarettes were also taken during the robbery. During the robbery, Appellant repeatedly yelled at Wheless and threatened to harm her.
Sergeant Phillip Bandy, with the McGhee Police Department, received a call from Wheless reporting the robbery. Bandy arrived at the scene and during the course of his investigation, Bandy developed a lead regarding the car driven by the alleged robbers. Shortly thereafter, officers stopped a vehicle matching the description of the vehicle seen leaving the store after the robbery. The vehicle was driven by Appellant. Appellant was taken into custody, and a search of his vehicle revealed several packs of Kool cigarettes and a forty-ounce bottle of Old English Beer. The cigarette packages were marked with a code number on the bottom of each pack that corresponded with several other packages found on the floor of the store after the robbery.
Appellant was charged by felony information on September 22, 2003, with one count of aggravated robbery. An amended information was filed on December 8, 2003, also charging Appellant as a habitual offender. Johnson-El was also charged in connection with the robbery, but on December 17, 2003, he entered a plea of guilty to one count of robbery and was sentenced to a term of fifteen years in the Arkansas Department of Correction, with an additional five years suspended. As part of his plea agreement, Johnson-El agreed to testify against Appellant at his trial.
Appellant was tried before a jury on March 9, 2004. Following the presentation of evidence and argument by counsel, the jury convicted appellant of aggravated robbery. He was sentenced as a habitual offender to a term of life imprisonment in the Arkansas Department of Correction. This appeal followed.
For his first point on appeal, Appellant alleges that the trial court erred in allowing Sergeant Bandy to testify that the cigarettes found in Appellant’s vehicle during his arrest were those stolen from the Bottle Shop Liquor Store. According to Appellant, this testimony was in direct violation of Ark. R. Evid. 701. The State counters that this argument is not preserved for appellate review. Alternatively, the State argues that Sergeant Bandy’s testimony was permissible under Rule 701. We agree that this argument is not preserved for our review.
An appellant’s failure to make a contemporaneous objection prevents him from asserting on appeal any error on the part of the trial court for admitting the evidence. Hardman v. State, 356 Ark. 7, 144 S.W.3d 744 (2004); Hill v. State, 337 Ark. 219, 988 S.W.2d 487 (1999). We have stated that if a contemporaneous objection is not made during a jury trial, the proverbial bell will have been rung and the jury prejudiced. Ridling v. State, 360 Ark. 424, 203 S.W.3d 63 (2005); Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998).
The following colloquy took place during the State’s direct examination of Sergeant Bandy at trial:
[The State]: What evidence did you collect from the car?
[Sergeant Bandy]: There was a forty-ounce bottle of Old English Beer in the car, and also some packs of Kool cigarettes.
[The State]: Is there anything unique about a pack, based on your experience, is there anything unique about packages of cigarettes that would enable you to identify particular packages in relation to other packages?
[Sergeant Bandy]: Yes,sir. There is a code number on the bottom of the pack that every pack within that lot and/or carton that they came out of would correspond.
[The State]: Okay. Were you able to compare that number on the ones you found in the car with those you recovered from the scene of the robbery?
[Sergeant Bandy]: Yes, sir.
[The State]: And what was, did you draw any conclusions from that comparison?
[Sergeant Bandy]: It was a perfect match.
[The State]: And what would that signify to you based on your experience?
It was only after this last question that Appellant’s counsel objected, arguing that Sergeant Bandy was not qualified to tell the jury what the numbers signified. The State responded that Sergeant Bandy had already testified about what the numbers meant, and, at one point, counsel for Appellant conceded as much, stating: “Okay.”
It is clear from the review of the record that this argument is not preserved for our review because Appellant did not object at the first opportunity to this line of questioning. As this court stated in Ridling, the bell was rung when Sergeant Bandy stated that the numbers on the packages found in Appellant’s car corresponded with those found on the floor of the liquor store, thus, any prejudice would have occurred prior to any objection by Appellant.
For his second point on appeal, Appellant argues that the trial court erred in refusing to admonish the jury to disregard prejudicial statements made by the State during its closing argument. According to Appellant, the improper statement was an attempt by the prosecutor to unfairly and prejudicially suggest that Appellant had the burden to explain why he had money in his mouth at the time of his arrest and that the jury should consider his failure to testify on this point. The State counters that Appellant’s argument is without merit as the trial court did admonish the jury and such admonition cured any prejudice that may have resulted. Moreover, the State points out that Appellant never claimed the admonition given was inadequate. Alternatively, the State argues that any prejudice resulting from the statement was harmless in light of the overwhelming evidence of Appellant’s guilt. Again, we agree that this argument is procedurally barred.
During his closing argument, the prosecutor stated:
You hear all sorts of things. Maybe he was just hiding this money because he didn’t want the police to find it and take six five dollar bills that he had, nothing else but six five dollar bills that he had. Maybe. Maybe. What evidence is there of that?
Appellant then objected, arguing:
I’m going to object,Your Honor. Requiring the Defendant to prove his innocence and to suggest that is improper, and I’d ask the Court to admonish the jury not to consider the statement, “What evidence is there of that?”
Thereafter, the court admonished the jury, stating:
Okay, ladies and gendemen, this is closing arguments, and it’s not, it’s designed to help you determine what the facts are. It’s not the evidence and I’m going to ask you to, you heard the evidence, and I think the closing arguments will help you determine what the facts are and that’s part of your duties and responsibilities.
Okay. You may proceed.
Here, Appellant received the relief he requested. It is axiomatic that a party who received the relief requested has no basis for appeal. Jones v. State, 326 Ark. 61, 931 S.W.2d 83 (1996); Richmond v. State, 320 Ark. 566, 899 S.W.2d 64 (1995). Once the trial court admonished the jury, Appellant made no further objections, did not seek a further admonition, or request a mistrial. His failure to apprise the trial court of his belief that the admonition given was inadequate precludes him from raising such an argument on appeal. See Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998). Accordingly, we will not address the merits of this argument.
Because Appellant received a sentence of life imprisonment, the record in this case has been reviewed pursuant to Ark. Sup. Ct. R. 4-3(h) for adverse rulings objected to by Appellant but not argued on appeal. No such reversible errors were found. For the aforementioned reasons, this case is affirmed. | [
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Per Curiam.
Petitioner, The Helena Daily World (“the Daily World”), a newspaper of general circulation located in Phillips County, filed a petition for writ of certiorari, requesting that we direct the respondents, Phillips County Circuit Court, by and through the Honorable L.T. Simes, and Wanda McIntosh, the clerk of the Phillips County Circuit Court (“clerk”), to certify and transmit the record of proceedings in an underlying case of City of West Helena v. Johnny Weaver, et al., No. Civ. 2005-4, to our court for review, and to dissolve an injunction, restraining order, and protective order that prohibits the Daily World from publishing information relating to a case heard by the Arkansas Judicial Discipline and Disability Commission (“Commission”). We grant the petition for writ of certiorari on the issue of certifying the record.
On January 6, 2005, at a hearing in the Weaver case, Mr. Weaver and his attorney made reference to a matter that was pending before the Commission. On January 7, 2005, the circuit court issued an injunction, restraining order, and protective order as a result of the reference to the pending matter. In its order, the circuit court enjoined the parties, their attorneys, “and the entities known as the Daily World . . . and any and all persons present at the hearing on said date [January 6, 2005] from communicating in any fashion whatsoever, i.e., speaking, writing, printing, distributing or disseminating any information heard or received at the said hearing relating to the [Commission].” The Daily World attached an uncertified copy of this order to its petition for writ of certiorari.
The Daily World is not a party to the underlying proceedings below in the Weaver case.
On February 7, 2005, the Daily World filed its petition for writ of certiorari, stating that a record was not filed with its petition because the clerk sealed the file at the direction of the circuit court. The Daily World argues that the circuit court’s order operates as a prior restraint and violates its fundamental rights of free speech and freedom of the press under the United States and Arkansas Constitutions. Further, the Daily World avers that it seeks to report on testimony, which is “of vital importance to the citizens of Phillips County,” regarding the matter before the Commission. The Daily World requests that we dissolve the injunction of the circuit court.
The State filed a response to the Daily World’s petition for writ of certiorari on February 17, 2005. In its response, the State argues that the Daily World is not entitled to a writ of certiorari because, notwithstanding that a reference to the case before the Commission was made in open court at the January 6 hearing, the matter was not yet public information and should remain confidential under Ark. Code Ann. § 16-10-404(b)(2). The State further contends that the circuit court’s order was narrowly tailored and did not infringe upon the Daily World’s free-speech rights.
On February 24, 2005, by letter order, we ordered that the Daily World’s petition be submitted as a case.
We now consider the Daily World’s petition for writ of certiorari. We have said that certiorari is an original writ issuing from a superior to an inferior tribunal requiring the inferior tribunal to forward the record of a proceeding to the superior tribunal for consideration there. Huffman v. Arkansas Judicial Discipline and Disability Comm’n, 344 Ark. 274, 278, 42 S.W.3d 386, 389 (2001) (citing Auditor v. Davies, 2 Ark. 494 (1840)). Certiorari, except in so far as it has been enlarged and extended by statute, is a common-law prerogative writ issued from a superior court directed to one of inferior jurisdiction, commanding the latter to certify and return to the former the record in the particular case. Huffman, supra (citing McAllister v. McAllister, 200 Ark. 171, 138 S.W.2d 1040 (1940)). The review available under certiorari is thus limited to errors appearing on the face of the record. Hanley v. Arkansas State Claims Comm’n, 333 Ark. 159, 970 S.W.2d 198 (1998); Hardin v. Norsworthy, 204 Ark. 943, 165 S.W.2d 609 (1942). Matters not contained in the record are simply not subject to appellate review. Smith v. Smith, 337 Ark. 583, 990 S.W.2d 550 (1999). Further, a writ of certiorari is not a writ of right but a writ of discretion. Ricci v. Poole, 253 Ark. 324, 485 S.W.2d 728 (1972); Hill v. Taylor, 199 Ark. 695, 135 S.W.2d 825 (1940).
The record before us consists of the Daily World’s petition and the State’s brief in response. The Daily World concedes that an uncertified copy of the challenged order is attached to its petition because the record in the Weaver case was filed under seal with the circuit court. Rule 6-1(a) of the Rules of the Arkansas Supreme Court provides that in cases in which the jurisdiction of this court is in fact appellate, although in form original, such as petitions for writs of prohibition, certiorari, or mandamus, the pleadings with certified exhibits from the trial court are treated as the record. See also Jackson v. Tucker, 325 Ark. 318, 927 S.W.2d 336 (1996). Without a certified copy of the circuit court’s order before us, we have no basis on which to act.
Therefore, we order the production of the following documents to be certified to us under seal. First, the Phillips County clerk shall certify and transmit under seal the circuit court’s January 6, 2005, order and any related pleadings that are contained in the Weaver file within thirty days of this per curiam. Second, the court reporter in the Weaver case shall transcribe the January 6 hearing in the Weaver case, and shall certify and transmit it to us under seal within thirty days of this per curiam order.
We decline to address the Daily World’s request to dissolve the injunction, restraining order, and protective order that prohibits the Daily World from publishing information relating to the case heard by the Commission. Once the ordered documents are filed with our court, we shall consider setting a briefing schedule on the Daily World’s prior-restraint argument.
Petition for writ of certiorari granted in part on the certification issue. | [
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Donald L. Corbin, Justice.
This is an appeal from a decision by Appellee Arkansas Department of Human Services (“DHS”) denying Appellants’ Linda and Abrham Batistes’ petition for an adoption subsidy. On appeal, Mrs. Batiste argues that the decision of the Administrative Law Judge (“ALJ”) was in error because: (1) DHS’s failure to inform of the availability of the federal adoption subsidy constitutes an extenuating circumstance warranting reconsideration of the subsidy application; (2) DHS’s method of administering the subsidy program violates the Supremacy Clause of the United States Constitution; (3) Mrs. Batiste was entitled tp a state adoption subsidy because DHS exercised dominion and control over her children prior to their adoption; and (4) Mrs. Batiste is entitled to a state subsidy because her children developed severe medical conditions after the adoption that were unknown prior to the entry of the adoption decree. This case was transferred to us from the Arkansas Court of Appeals, as involving an issue of first impression; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b) (1). Because the ALJ erred in determining that the children were not in the custody of DHS at the time of the adoption, we reverse and remand.
The record reveals that S.B., L.B., and K.B. were removed from their parents’ home on January 27, 1993, following the death of their sibling, T.D. Initially, the children were placed into foster care. On February 5, 1993, the juvenile court entered an emergency order finding that the children were dependent-neglected. The children were subsequently placed in the Batistes’ home on February 18, 1993, after the juvenile court granted them temporary custody. Mrs. Batiste is the children’s mother’s aunt. Initially, the goal in the dependency-neglect case was to reunite the children with their parents. After it became evident that reunification was not going to be possible, the goal was changed to termination of parental rights. The Batistes then decided to petition the court to adopt the children. An order granting their petition for adoption was entered on February 27, 1995.
After adopting the children, the Batistes began facing economic hardships. Mr. Batiste became disabled and had to quit his job with the federal government. In addition, the children began experiencing significant health problems that led to costly medical bills. Specifically, S.B. began to go blind and suffered from post-traumatic stress disorder (“PTSD”); L.B. also suffered from PTSD; and K.B. developed severe asthma. Mrs. Batiste contacted DHS in February of 1995 to determine if there were any funds available to help with the medical costs of her adopted children. According to Mrs. Batiste, it was then that she learned of the availability of federal and state adoption subsidies.
On February 9, 1999, the Batistes filed an application for an adoption subsidy with DHS. In a letter dated March 11, 1999, DHS denied their petition. The Batistes then requested an internal review of their petition. In a letter dated April 9, 1999, DHS stated that an internal review had been conducted, and the petition was being denied because the children were not in the custody of the State at the time of the adoption. The Batistes then requested a hearing, which was held on August 6, 1999.
Following the hearing, the ALJ issued a written opinion affirming DHS’s denial of the subsidy. Specifically, the ALJ determined that the Batistes were not entitled to the adoption subsidy because the children were not in the custody of DHS at the time of the adoption. According to the ALJ, custody was transferred from DHS to the Batistes by the court order dated February 18, 1993.
The Batistes timely petitioned the Pulaski County Circuit Court for review of the agency decision. In an order dated March 19, 2001, the circuit court remanded the matter to the ALJ with directions that the ALJ make a specific finding on the issue of whether the state’s subsidy program was in conflict with the federal government’s subsidy program. In a letter order dated January 29, 2002, the .ALJ ruled that there was no conflict between the state and federal programs. The ALJ further noted that the Batistes were not eligible for a federal subsidy because their children were never determined to be Title IV-E eligible.
The Batistes again petitioned the circuit court for review of DHS’s decision. The trial court ordered the parties to submit trial briefs on the issue of whether there was a conflict between the state and federal subsidy programs. Thereafter, the trial court entered an order on January 9, 2004, finding that DHS’s denial of the Batistes’ petition was supported by substantial evidence. This appeal followed.
Before turning to the merits of Mrs. Batiste’s arguments, we note that judicial review of a decision by DHS is governed by the Administrative Procedure Act (APA), Ark. Code Ann. § 25-15-212 (Repl. 2002). The appellate court’s review is directed, not toward the circuit court, but toward the decision of the agency, because administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. Ford Motor Co. v. Arkansas Motor Veh. Comm’n, 357 Ark. 125, 161 S.W.3d 788 (2004); Arkansas State Police Comm’n v. Smith, 338 Ark. 354, 994 S.W.2d 456 (1999). Our review of administrative decisions is limited in scope. Williams v. Arkansas State Bd. of Phys. Therapy, 353 Ark. 778, 120 S.W.3d 581 (2003). When reviewing such decisions, we uphold them if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. Pine Bluff for Safe Disp. v. Arkansas Poll. Control & Ecol. Comm’n, 354 Ark. 563, 127 S.W.3d 509 (2003); Hamilton v. Arkansas Poll. Control & Ecol. Comm’n, 333 Ark. 370, 969 S.W.2d 653 (1998).
In determining whether a decision is supported by substantial evidence, we review the record to ascertain if the decision is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Ford Motor Co., 357 Ark. 125, 161 S.W.3d 788; Pine Bluff for Safe Disp., 354 Ark. 563, 127 S.W.3d 509. In doing so, we give the evidence its strongest probative force in favor of the administrative agency. Id. The question is not whether the testimony would have supported a contrary finding, but whether it supports the finding that was made. Arkansas Bd. of Exam’rs v. Carlson, 334 Ark. 614, 976 S.W.2d 934 (1998). As true for any other factfinder, it is the prerogative of the agency to believe or disbelieve any witness and to decide what weight to accord the evidence. Id.
The requirement that the agency’s decision not be arbitrary or capricious is less demanding than the requirement that it be supported by substantial evidence. Pine Bluff for Safe Disp., 354 Ark. 563, 127 S.W.3d 509. To be invalid as arbitrary or capricious, an agency’s decision must lack a rational basis or rely on a finding of fact based on an erroneous view of the law. Id. Where the agency’s decision is supported by substantial evidence, it automatically follows that it cannot be classified as unreasonable or arbitrary. Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992).
With this standard in mind, we now turn to Mrs. Batiste’s arguments on appeal. This issue is actually raised as Mrs. Batiste’s third point on appeal; however, because this point constitutes reversible error, we will address it first. Mrs. Batiste argues that the ALJ erred in determining that she was not entitled to an adoption subsidy under the State program because the children were not in DHS’s custody at the time of the adoption. DHS argues that Mrs. Batiste is not eligible for an adoption subsidy because the children were in her custody at the time of the adoption, not the State’s. We agree with Mrs. Batiste.
The Federal Adoption Assistance and Child Welfare Act of 1980, codified at 42 U.S.C. §§ 670-76, amended Title IV-E of the Social Security Act and provides for adoption assistance for children with special needs. Pursuant to this Act, each state is required to enact its own program to administer adoption assistance. The Arkansas Subsidized Adoption Act, promulgated by Act 1109 of 1979, is codified at Ark. Code Ann. §§ 9-9-401 to -412 (Repl. 2002). The purpose of this act is set out in section 9-9-403, which provides:
The purpose of this subchapter is to supplement the Arkansas adoption statutes by making possible through public financial subsidy the most appropriate adoption of each child certified by the Department of Human Services as requiring a subsidy to assure adoption.
Pursuant to section 9-9-404, DHS is the agency responsible for establishing and administering an ongoing program of adoption subsidies. Thus, DHS promulgates the regulations governing administration of the subsidy program. DHS is also responsible for determining who is eligible for the adoption subsidies.
In the instant case, DHS determined that the Batistes were not eligible for an adoption subsidy on the ground that their adopted children were not in the custody of DHS at the time of the adoption as required under the State’s subsidy program. Specifically, DHS relied on section 9-9-402, which provides in relevant part that “child” means a minor that is “[i]n the custody of the Department of Human Services[.] ” Nothing in that section further defines what encompasses such custody. Thus, we must determine whether there is a distinction between legal custody and physical custody.
In order to answer this question, it is helpful to review the statutory provisions governing cases, such as the present one, where a child is removed from the parents’ home after an adjudication of dependency-neglect. Pursuant to Ark. Code Ann. § 9-27-334(a)(2)(A) (Supp. 1993), once a juvenile is found to be dependent-neglected, the court may “transfer custody of the juvenile to the Department of Human Services, to another licensed agency responsible for the care of juveniles, or to a relative or other individual.” Initially, these children were placed into the foster-care system. A little less than one month later, physical custody of the children was transferred to the Batistes. DHS, however, had an open case file on the children during this time, with the goal set as reunification with the children’s biological parents.
It was only after the eighteen-month-dispositional hearing, that DHS changed the goal from reunification to termination of parental rights. A case wherein DHS seeks to terminate parental rights is governed by Ark. Code Ann. § 9-27-341 (Supp. 1995), which provides in relevant part:
(a) This section shall be a remedy available only to the Department of Human Services. It shall not be available for private litigants or other agencies. It shall be used only in such cases when the Department of Human Services is attempting to clear a juvenile for permanent placement____
(b) The court may consider a petition to terminate parental rights if it finds that the Department of Human Services has physical or legal custody of the juvenile, an appropriate placement plan for the juvenile and the parent or parents, or putative parent, if the putative parent can be identified, have received actual or constructive notice of the hearing to terminate parental rights. [Emphasis added.]
It is true that in this case, termination was ultimately granted in the context of the Batistes’ adoption decree, as provided for in Ark. Code Ann. § 9-9-220 (Repl. 1993), but it is noteworthy that DHS, who initially pursued the termination, could only have done so because they had legal custody of the children.
Moreover, in the present case, the evidence demonstrates that while the Batistes had physical custody of the children, DHS maintained legal custody of them. Mrs. Batiste testified at the administrative hearing that the children were placed with them based upon a recommendation from someone at SCAN or DHS after a- home study was conducted. According to Mrs. Batiste, when the children initially came into her custody, the goal in the case plan was to reunite them with their parents, until DHS recommended that the goal be changed to termination of parental rights. Once the plan was changed to termination, the Batistes filed their petition to adopt the children. According to Mrs. Batiste, they had to comply with a case plan the entire time the children were in their custody until the adoption was approved by the juvenile court. This case plan included making the children available for counseling, as well as for visits with their parents. Mrs. Batiste stated that they were told that if they did not comply with the case plan that the children would be taken from their home. Mrs. Batiste also stated that she did not believe that she had legal custody of the children during the time leading up to the adoption. In fact, according to Mrs. Batiste, a SCAN employee told her that she did not have custody of the children and that they were only allowed to live in her home. On cross-examination, Mrs. Batiste testified that she believed the children were in the State’s custody and that she had to abide by the State’s rules. Also, Mrs. Batiste stated that at the time the children were in her custody prior to the adoption, the children qualified for financial aid in the form of AFDC and Medicaid, but once they were adopted the aid was terminated because of the Batistes’ income.
Ed Wallace, an employee of DHS, testified that the Batistes were not eligible for an adoption subsidy because the children were not in the custody of DHS at the time of the adoption. He also testified that pursuant to a court order, the children’s biological parents were ordered to make support payments to the Batistes in the amount of $25 per week. Mr. Wallace conceded that during the time the Batistes had physical custody of the children, there was a protective-services file open and that the juvenile court conducted review hearings and that DHS ultimately changed the goal in the case from reunification to termination of parental rights. Wallace also admitted that there were case plans in effect that the Batistes had to comply with in order to maintain physical custody of the children.
Also included in the record is a review order in the dependency-neglect case dated March 23,1994. In that order, the juvenile court ordered SCAN and/or DHS to continue to offer treatment services with the goal in the case plan to be family reunification. The court went on to state that the next review hearing would be the eighteen-month-dispositional hearing. The order goes on to specifically provide:
9. During the time the State of Arkansas is obligated to make foster care maintenance payments on behalf of any dependent-neglected child named herein, any parent, guardian, or custodian who is receiving or is entitled to receive child support or maintenance payments for said child is hereby ordered to pay such amounts as are received to the Arkansas Department of Human Services. Should such payment be subject to any order of payment to the clerk of a court, a filed copy of this order shall be provided to such clerk, who shall upon receipt thereof, transfer such payments to a designated agent of the Department of Human Services. Upon receipt of such funds as are hereby assigned, the Department of Human Services shall prepare a written record of such payment. Any such funds received by the State may be applied to recoup money already expended by the State of Arkansas for said child. The Department of Human Services is authorized to undertake enforcement action as to support including arrearages. Any amount recovered in excess of support requirements which are not subject to recoupment shall be distributed in accordance with Title IV-D of the Social Security Act.
10. This court directs that said juveniles be provided with physical, mental or emotional care as required in the opinion of a duly authorized or licensed physician, dentist, surgeon, or psychologist, whether or not such care is rendered on an emergency basis or on an inpatient or outpatient basis, and the Court consents to such care. And further, the Court authorizes the custodian or designates agents to consent to specific treatment and procedure.
Thus, this order is further evidence that DHS was an active participant in this case until the Batistes’ adoption petition was approved.
Finally, the adoption decree also provides evidence regarding the true custody of these children. The adoption decree states that the matter arose out of a dependency-neglect action filed in the juvenile court. The decree also reflects that a home evaluation was conducted on the Batistes’ home and that review hearings were conducted in the case. The decree reflects that an eighteen-month-dispositional hearing was held on September 12,1994, and that reunification efforts were discontinued. A hearing on termination of parental rights was postponed at the parties’ request until the date scheduled for an adoption hearing. Most importantly, the decree stated that the Batistes had physical custody of the three children since the latter part of February 1993.
In sum, the evidence before the ALJ was that while the children were in the Batistes’ physical custody, DHS maintained a supervisory role over the children through the context of the protective-services case that remained open on the children until their parents’ rights were terminated. Moreover, pursuant to our statutory scheme, DHS could not even seek termination of parental rights unless the children were in its custody. DHS’s attempt to distinguish physical and legal custody exalts form over substance and leads to an absurd result in the present case. Accordingly, the ALJ’s determination that the Batistes were not eligible for an adoption subsidy on the basis that the children were not in the custody of DHS at the time of the adoption is not supported by substantial evidence. We therefore reverse on this point.
Next, the Batistes argue that DHS failed to inform them of the availability of any adoption subsidy prior to their adopting the children, and such failure constitutes an extenuating circumstance warranting review of their application. DHS argues that this argument was not raised to the ALJ and thus is waived on appeal. Alternatively, DHS argues that at that the time the Batistes sought to adopt these children, it had no duty to inform those seeking to adopt of the availability of an adoption subsidy.
First, there is no merit to DHS’s contention that this point was not raised before the ALJ. Based on a review of the testimony at the hearing before the ALJ, it is apparent that Mrs. Batiste raised the issue of whether or not DHS ever informed her or her husband that they might be eligible for an adoption subsidy. In fact, they both testified that no one ever informed them of the availability of such a subsidy. Ed Wallace, a DHS employee testified that DHS’s current policy is to inform potential adoptive parents of the subsidies regardless of their income. June Fly, an adoption specialist with the Pulaski County Adoptions Unit testified that her Department was “struggling with [the] subsidy policy” during the years 1993 through 1995.
Moreover, in her opinion, the ALJ noted that the Batistes alleged that they had no knowledge of the subsidy program prior to the adoption. However, the ALJ’s order makes no finding regarding this allegation, as it was unnecessary to address this issue once it was determined that these children were not in the custody of DHS at the time of the adoption. Accordingly, we believe the notification issue was sufficiently raised in the hearing before the ALJ.
Having determined that the issue was raised below, we now turn to the merits of Mrs. Batiste’s argument that DHS had a duty to inform her of the subsidy program. We note at the outset that DHS argues that at the time the Batistes petitioned to adopt these children, it had no duty to inform them of the availability of adoption subsidies. DHS provides no support for this argument and, in fact, its assertion on this point is contrary to the law in effect at the time of the adoption. Notably, 45 C.F.R. § 1356.40 sets forth the regulations governing the administration of the adoption assistance program and requires states to meet the requirements of this section in order to be eligible for federal financial participation in adoption assistance payments. This section requires that an adoption assistance agreement be signed and in effect at the time of or prior to the final decree of adoption. See 45 C.F.R. § 1356.40(b)(1); see also section 9-9-408(a) (requiring a written agreement between the family entering into the subsidized adoption and DHS prior to entry of the final decree of adoption).
Additionally, subsection 45 C.F.R. 1356.40(f) requires that state agencies “must actively seek ways to promote the adoption assistance program.” This requirement has been interpreted to mean that a state agency has a duty to inform adoptive parents of the availability of adoption subsidies. The United States Department of Health and Human Services (DHHS) reiterated this position in a policy announcement issued on January 23, 2001, wherein it stated in relevant part:
The State tide IV-B/IV-E agency is required to actively seek ways to promote the adoption assistance program. This means that it is incumbent upon the State agency to notify prospective adoptive parents about the availability of adoption assistance for the adoption of a child with special needs.
DHHS ACYF-CB-PA-01-01 (footnote omitted).
DHHS has also addressed the issue of what is to be done when adoptive parents are not notified of the availability of adoption subsidies prior to an adoption being finalized and later seek such subsidies. DHHS PIQ 92-02 was issued on June 25, 1992, and addressed the types of situations that would constitute extenuating circumstances and thus warrant review in a fair hearing under the federal provision. According to that policy interpretation, state notification to potential adoptive parents is a critical part of the program and such notification is the responsi bility of the state agency responsible for administering the Title IV-E program. Thus, according to DHHS’s policy interpretation, failure to provide such notification constitutes an extenuating circumstance warranting a fair hearing.
Accordingly, in light of the regulation that a state agency must actively promote the adoption assistance program and the policy interpretation by DHHS that failure to do so constitutes an extenuating circumstance, it will be necessary on remand for the ALJ to make a factual determination as to whether or not DHS notified the Batistes of the availability of adoption subsidies. The mere fact that there was not a subsidy agreement signed prior to the entry of the adoption decree in this case does not preclude DHS from now determining whether Mrs. Batiste qualifies for an adoption subsidy if DHS failed to provide the requisite notice, as such a failure constitutes an extenuating circumstance.
Next, Mrs. Batiste argues that DHS requires prospective adoptive parents to be eligible for the state program as a condition of eligibility for the federal program, and because the state requirements are more exacting than those under the federal program, DHS’s method of administering the program violates the Supremacy Clause of the United States Constitution. Specifically, Mrs. Batiste argues that:
Although the requirements of the two subsidy programs are similar, the state requirements are more restrictive and when DHS and the ALJ applied the more restrictive state requirements to the Batistes’ federal adoption subsidy request, both DHS and the ALJ ran afoul of the Supremacy Clause of the United States Constitution. [Footnote omitted.]
DHS again argues that this issue is not preserved for our review.
With regard to the preservation issue, it is unclear whether this argument was properly raised to the ALJ during the first administrative hearing. However, the record does reflect that during the hearing before the circuit court, Mrs. Batiste argued that there was a conflict between the state and federal laws governing adoption subsidies. At that time, the circuit court asked Mrs. Batiste’s counsel if she had raised this argument to the ALJ. Counsel stated that she had raised the argument, and counsel for DHS made no argument to the contrary. The circuit court then remanded the matter to the ALJ with instructions for her to rule on the conflicts issue. The ALJ then issued an order ruling on the issue. She made no mention that the argument had not been presented to her during the first administrative hearing. Thus, DHS is now arguing for the first time on appeal that this issue was not properly preserved, and this argument is without merit.
Nevertheless, Mrs. Batiste’s argument on this point fails for two reasons. First, there is nothing in either the ALJ’s initial order or the order on remand that indicates that she found that Mrs. Batiste was not eligible for the federal subsidy because she failed to satisfy requirements under the state provision. In her first order, the ALJ reaches no conclusion regarding Mrs. Batiste’s eligibility under the federal program. Upon review, the trial court remanded the matter back to the ALJ for a finding of whether there was a conflict between the federal and state programs. The ALJ ruled that there was no conflict and additionally ruled that the Batistes were not eligible for the federal subsidy because the children were not eligible for Title IV-E assistance. The requirement concerning Title IV-E eligibility is found in 42 U.S.C. § 673, which governs the federal program. Thus, it appears that the ALJ based her ruling on federal eligibility on the federal requirements. Notably, in her opinion on remand, the ALJ specifically stated that “[t]he determination that was originally made in this case was based on state subsidy.” Accordingly, Appellant’s argument on this point is without merit as the ALJ did not base her decision on federal eligibility on state requirements.
Second, Mrs. Batiste failed to present any evidence to the ALJ to prove that there was a conflict between the two programs. Specifically, there was no testimony presented at the hearing before the ALJ regarding the funding of the state or federal subsidies. There was no specific evidence presented regarding the criteria used by DHS to determine eligibility for either program. Mrs. Batiste points to the testimony of Ed Wallace as proof that the state requirements are more exacting than the federal ones, but Mr. Wallace simply testified regarding his belief as to why the Batistes did not qualify for any subsidy. In the end, the ALJ determined that the Arkansas Subsidized Adoption Act was not in conflict with the Federal Adoption Assistance Program. Because there was no evidence to the contrary, we cannot say that the ALJ’s decision was arbitrary and capricious. Accordingly, the ALJ’s determination that there was no conflict is affirmed.
For her final point on appeal, Mrs. Batiste argues that she is entitled to a state subsidy because all three of her adopted children developed severe medical and psychiatric conditions that were unknown prior to entry of the adoption decree. Mrs. Batiste further argues that the General Assembly enacted section 9-9-408(c)(1) in anticipation that adoptive parents of special-needs children may need financial assistance in cases where the adopted children require medical treatment or hospitalization. DHS counters that there was insufficient evidence before the ALJ to support Mrs. Batiste’s argument on this point. DHS correctly points out that the only evidence regarding the physical and mental condition of these children was the testimony from Mrs. Batiste that one child is going blind, one child suffers from asthma, and the third child suffers from PTSD.
We áre unable to address the merits of this argument because while Appellant raised the general issue, it appears that the argument was never fully developed before the ALJ. More importantly, Mrs. Batiste failed to obtain a ruling on this specific issue. It is well settled that a party’s failure to obtain a ruling precludes our review of an issue on appeal. Bell v. Bershears, 351 Ark. 260, 92 S.W.3d 32 (2002).
Reversed and remanded.
Brown and Imber, JJ., concur in part; dissent in part.
Mr. Batiste is now deceased and thus not a party to the present appeal.
While the above-stated order is not included in the addendum, it is in the record. In reviewing agency decisions, however, this court’s standard is to review the record to ascertain if there is substantial evidence supporting the decision oftheALJ. See Pine Bluff for Safe Disp., 354 Ark. 563, 127 S.W.3d 509. | [
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Betty C. Dickey, Justice.
On January 20, 1999, Ernest Young underwent an esophagogastroduoenoscopy (EGD) at the Gastro-Intestinal Center (Center), a free-standing endoscopy center in Little Rock, Arkansas. Dr. Debra Morrison, M.D., performed this first procedure, telling Mr. Young that he would be sedated with the prescription medications Valium and Demerol. Dr. Morrison explained that, because he was to receive the medications, he must not drive himself home following the procedure. Before the January 20 EGD, Mr. Young had signed a form explaining that he understood that he was not to drive, and that Mrs. Maggie Young, his wife, would drive Mr. Young home. Much later, it was determined that Mr. Young had driven himself home.
Mr. Young returned to the Center on January 29, 1999, for a colonoscopy but, this time, he did not bring his wife. At the Center, Mr. Young told Michelle Ferrell, the receptionist, that after the procedure his friend Trundle Smith would drive him home. Ms. Ferrell recorded Smith’s name, and Mr. Young was checked in to the Center. He again signed a form explaining that he understood that he was not to drive following the procedure.
After the colonoscopy was completed and Trundle Smith had not arrived, Diane Brown, a registered nurse, learned that Mr. Young intended to drive himself home. After getting dressed, Mr. Young went with Nurse Brown into an office at the Center, and the nurse called his wife in El Dorado, Arkansas. Mrs. Young told Nurse Brown that there was no one available to pick up Mr. Young. The nurse then attempted to persuade Mr. Young to wait at the Center for the next several hours, or until someone was available to drive him home. When it became apparent that Mr. Young was going to leave on his own, Nurse Brown requested that he sign a form indicating that he understood that he should not drive and that he was leaving against medical advice. Mr. Young signed the form, left the Center, and drove himself to another medical office, where he underwent another medical procedure. Subsequently, while driving home to El Dorado, Arkansas, from that facility, he was injured in an one-car collision and died several months later.
Mrs. Young and Mr. Young’s estate (Mrs. Young) sued the Center and Nurse Brown, alleging that they had failed to exercise the degree of skill and care required of members of the profession practicing in Little Rock, Arkansas, and that that failure constituted negligence. The trial court granted the summary judgment motions of the Center and Nurse Brown. Mrs. Young appealed to the Arkansas Court of Appeals, which reversed and remanded. This court granted the Center’s and Nurse Brown’s petition for review, and we consider this appeal as though it had been originally filed in this court. Dixon v. Salvation Army, 360 Ark. 309, 201 S.W.3d 386 (2005); Sharp County Sheriff's Office v. Ozark Acres, 349 Ark. 20, 22, 75 S.W.3d 690 (2002). Mrs. Young argues two points on appeal: (1) that the trial court erred in entering judgment against her on the ground that the Gastro-Intestinal Center owed no duty to Earnest Young as a matter of law; and, (2) if the trial court intended to enter judgment against her on the basis of causation, it was error to do so. We find no error and affirm.
A trial court may grant summary judgment only when it is clear that there are no genuine issues of material fact to be litigated, and that the party is entitled to judgment as a matter of law. Harris v. City of Fort Smith, 359 Ark. 355, 197 S.W.3d 461 (2004); Craighead Elec. Coop. Corp. v. Craighead County, 352 Ark. 76, 98 S.W.3d 414 (2003); Cole v. Laws, 349 Ark. 177, 76 S.W.3d 878 (2002). Once the moving party has established a prima facie case showing entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Harris, supra; Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998).
Before addressing Mrs. Young’s points on appeal, we look at whether Mrs. Young proved the applicable standard of care. In Williamson v. Elrod, 348 Ark. 307, 72 S.W.3d 489 (2002), this court held that the burden of proof for a plaintiff in a medical malpractice case is fixed by statute. The statute requires that in any action for a medical injury, expert testimony is necessary regarding the skill and learning possessed and used by medical care providers engaged in that speciality in the same, or similar, locality. Id.; Dodson v. Charter Behavioral Health Sys., Inc , 335 Ark. 96, 983 S.W.2d 98 (1998). In Reagan v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991), we affirmed summary judgment where the trial court ruled that there was no material issue of fact remaining because the testimony of the plaintiffs expert witness, a physician, did not meet the burden of proof under the statute:
(a) In any action for medical injury, when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge, the plaintiff shall have the burden of proving:
(1) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant, the degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he or she practices or in a similar locality;
(2) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant that the medical care provider failed to act in accordance with that standard; and,
(3) By means of expert testimony provided only by a qualified medical expert that as a proximate result thereof the injured person suffered injuries that would not otherwise have occurred.
Ark. Code Ann. § 16-114-205 (1987).
In Williamson, the doctor never described the degree of skill and learning ordinarily possessed by doctors in good standing in Little Rock or a similar locale. Williamson, supra. The statute and case law are specific in stating that there must be an attestation by an expert regarding this locality or a similar one, and this court has affirmed summary judgments for failure to do so. Raegan, supra. Here, the expert witnesses, Nurse Cathy Dykes and Dr. Fred Sutton, both from Texas, failed to testify regarding the standard of care in Little Rock, Arkansas. Therefore, Mrs. Young did not establish the requisite standard of care.
Mrs. Young’s first point on appeal is that the trial court erred in entering summary judgment against her on the ground that the Center and Nurse Brown owed no duty to Mr. Young as a matter of law. We find no error and affirm the trial court. The burden of proof in a medical malpractice action is defined by Ark. Code Ann. § 16-114-206, which provides in part:
(b)(1) Without limiting the applicability of subsection (a) of this section, when the plaintiff claims that a medical care provider faded to supply adequate information to obtain the informed consent of the injured person, the plaintiff shall have the burden of proving that the treatment, procedure, or surgery was performed in other than an emergency situation and that the medical care provider did not supply that type of information regarding the treatment, procedure, or surgery as would customarily have been given to a patient in the position of the injured person or other persons authorized to give consent for such a patient by other medical care providers with similar training and experience at the time of the treatment, procedure, or surgery in the locality in which the medical care provider practices or in a similar locality.
In any action for medical injury, the plaintiff must prove the applicable standard of care, that the medical provider failed to act in accordance with that standard, and that such failure was a proximate cause of the plaintiff s injuries. See Williamson v. Elrod, 348 Ark. 307, 72 S.W.3d 489 (2002). It is not enough for an expert to opine that there was negligence that was the proximate cause of the alleged damages. Id. The opinion must be stated within a reasonable degree of medical certainty or probability. Id.
Mrs. Young argues that the Center and Nurse Brown breached three distinct duties to Mr. Young, including the duty: (1) not to sedate a patient without a driver; (2) not to discharge a patient from the recovery room; and, (3) not to discharge a sedated patient to drive himself. First, the Center has a “Patient Admission” policy that requires the staff to ensure that no patient is sedated unless he has someone else to drive him home. This policy states, “Upon arrival for a procedure previously scheduled through the attending physician’s office, the patient will proceed as follows[.] . . . Confirm and give name of responsible adult/driverf.] ... If the patient’s family/companion decides to leave the Center during the procedure time, the receptionist should obtain the name and expected time of their return. A phone number should be exchanged between the patient’s family/driver and the Center for communication in case of an emergency or a delay.”
Nurse Cathy Dykes and Dr. Fred Sutton testified through affidavits that “all health care providers who sedate patients must confirm the existence of someone to take the patient home, and that this means more than writing down a name on a piece of paper; it means actually speaking with the driver to make sure they exist and know when to come pick the patient up.” Mrs. Young contends, then, that the Center had a duty to confirm the existence of, and speak with, the person who was to drive Mr. Young home before they sedated him.
However, Mr. Young’s procedure only went forward because Mr. Young told the receptionist at the Center that Trundle Smith would pick him up and drive him home. It was not until after the procedure that any employee of the Center learned that Mr. Young intended to drive himself. Physicians and nurses must be allowed to rely upon the information given to them by their patients, and patients must assume some responsibility for their own care. It is too onerous a burden to require a physician or nurse to assume that a patient is providing incorrect information to them. While the Center’s admission policy could be clearer and more comprehensive, it does not, and should not, impose a duty to control.
Mrs. Young also argues that the Center and Nurse Brown had a second duty not to discharge Mr. Young from the recovery room. Mrs. Young contends that “having sedated Mr. Young in violation of both the standards of their profession and their own written policy, Defendants had created a serious problem: they now had a sedated patient on their hands with no ride home.” The Center’s policy, “Intravenous Conscious Sedation Policy and Procedure,” provides that patients “will not be discharged from the recovery room until accompanied by a responsible adult.” Mrs. Young maintains that the Center and Nurse Brown should have kept Mr. Young in a gown in the recovery room, rather than letting him get dressed to go into the report room to call his wife and friend. However, Nurse Brown had neither a right, nor a duty, to keep Mr. Young in the recovery room, nor a right to keep his clothes from him for eight hours.
Mrs. Young argues that there was a third duty not to discharge Mr. Young to drive himself. She compares Mr. Young’s “discharge” to that ofa bartender who intoxicates a customer. The Center’s policy, “Patient Discharge,” states that a patient will not be discharged unless accompanied by a responsible adult and that this instruction “shall” be included in a pre-procedure instruction. However, Mr. Young was not discharged. He left against medical advice. Witnesses suggested various options: put him in a taxi cab; put him in a hotel; call the police; admit him to the hospital; personally drive him home; take his keys away from him; or, physically restrain him. Nurse Brown had neither a right nor a legal duty to impose those restrictions, and this court will not create this type of burden on the medical community, nor these limits on a patient’s rights.
This case can be distinguished from Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 348 (1997) and Jackson v. Cadillac Cowboy, Inc., 337 Ark. 24, 986 S.W.2d 410 (1999). In Shannon v. Wilson, this court recognized that the sale of alcohol to a minor that resulted in injuries was a proximate cause of those injuries. The court stated:
The legislature determined that the prohibition of the selling or furnishing alcohol to minors for monetary gain was of such importance that this criminal sanction was amended in 1993 by Act 875 establishing the violation as a Class D felony. In the emergency clause for Act 875, the legislature made the determination that existing statutes criminalizing the sale of alcohol to minors were too lenient and thus heightened the penalty from a misdemeanor to a felony. Specifically, the legislature found, “supplying alcoholic beverages to underage persons is strictly contrary to the public policy and is detrimental to the young people of tins State, and that the penalties for this conduct should be increased to deter and to punish these violations of Arkansas law and policy.” 1993 Ark. Acts 875.
In enacting the foregoing statutes, it is clear that the legislature determined it is the public policy of the State of Arkansas to protect minors as a special class of citizens from the adverse consequences of alcohol consumption. The statutes establish an affirmative duty for alcoholic beverage license holders to safeguard against minors purchasing alcohol. These statutes serve to regulate the liquor industry and to promote the safety of our citizenry as a whole. We conclude that the statutes establishing affirmative obligations upon license holders authorized to sell alcohol and the statute classifying the criminal act of selling or furnishing alcohol to minors for monetary gain a felony create a duty for licensees to exercise a high standard of care for the protection of minors. A breach of this duty can lead to a suit for negligence.
Shannon, 329 Ark. at 159-160.
Two years later, in Jackson v. Cadillac Cowboy, Inc., this court held:
Among the prohibited practices in the Arkansas Alcoholic Beverage Control Act is the sale of alcohol “to a habitual drunkard or an intoxicated person,” which is a misdemeanor offense. See Ark. Code Ann. § 3-3-209 (Repl. 1996). When we read this statute in conjunction with Act 695, it is clear to us, as it was in Shannon v. Wilson, supra, that the General Assembly has spoken on this point and has established a high duty of care on the part of holders of alcohol licenses, which includes the duty not to sell alcohol to high-risk groups, including intoxicated persons. Stated a different way, a duty of care exists on the part of licensed alcohol vendors not to endanger the public health, welfare, or safety, and that duty is breached when vendors sell alcohol to intoxicated persons in violation of § 3-3-209. Although these ABC statutes do not specifically provide for civil liability, a duty of care and the attendant standard of care may be found in a statute that is silent on civil liability. See Restatement (Second) of Torts § 286 Comt. d (1965).
Jackson, 337 Ark. at 29.
In both Shannon and Jackson, this court relied on the intent of the Arkansas General Assembly, which enacted a change in public policy and imposed a higher standard of care. Here, the General Assembly has not enacted a statute imposing such a duty to control a patient by a medical care provider, and this court will not do so now.
Mrs. Young argues that “the question before this Court in reviewing Judge Piazza’s summary judgment is whether the Plaintiff pleaded the existence of one or more duties owed by the Defendants to Ernest Young, and whether there was any evidence that these duties existed and were breached.” Under Arkansas law, a medical care provider has no duty to force a patient to follow medical advice. Other jurisdictions have not recognized such a duty, and the medical community imposes no such duty upon itself. While it is reasonable to require that medical care providers give patients appropriate information regarding their medical case, patients must then bear the responsibility for the consequences of following, or not following, such advice.
Mrs. Young’s complaint failed to state facts upon which relief could be granted because there is no legal duty upon medical care providers to do more than what was done in this case. The law of negligence requires as an essential element that the plaintiff show that a duty of care was owed. Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994). The issue of whether a duty exists is always a question of law, not to be decided by a trier of fact. Hall v. Rental Management, Inc., 323 Ark. 143, 913 S.W.2d 293 (1996). If no duty of care is owed, summary judgment is appropriate. Smith v. Hanson, 323 Ark. 188, 914 S.W.2d 285 (1996).
The Center and Nurse Brown owed no legal duty to Mr. Young to do more than warn him that he should not drive, and a jury question is not created simply because an expert believes one exists. It is undisputed that Mr. Young was repeatedly warned not to drive.
While experts in medical malpractice cases define the standard of care applicable to medical care providers, the experts cannot create a duty that the law does not otherwise recognize. Expert witnesses are required to define the standard of care in a medical malpractice case. As the Center and Nurse Brown point out, the “courts, however, must not abandon their role as a gatekeeper when expert opinions seek to create a duty whose scope is so broad so as to be offensive, coercive, tortious, and criminal, or that cannot fairly or safely be met. It is the role of the courts to make a determination regarding whether a duty exists and is legally enforceable.” The trial court recognized this role, reviewed the undisputed facts including expert testimony and applicable law, and determined that imposing a duty upon Nurse Brown to make Mr. Young comply with her advice would impossibly burden medical care providers. Thus, the trial court correctly held that the law could not recognize the duty alleged by Mrs. Young.
Defining the existence of a legal duty is emphatically a matter for the courts or the legislature to decide. A review of federal and multi-state case law indicates that no other jurisdiction appears to recognize such a duty to control a patient. In Praesel v. Johnson, 967 S.W.2d 391, 41 Tex. Sup. Ct. J. 630 (1998), a wrongful death and survival action was brought against physicians and a clinic involved in the treatment of a patient who had an epileptic seizure immediately prior to a fatal automobile accident. The trial court granted summary judgment for all defendants, and plaintiffs appealed. The Supreme Court of Texas held that (1) the statute permitting physicians to inform the state of the identity of patients with epilepsy for possible revocation of a patient’s driver’s license does not support imposition of negligence per se against physician for failure to make such report, and (2) treating physi cians do not have a common law duty to third parties to warn epileptic patients not to drive. Id. That court did not consider warning a patient about driving to be a fact issue for the jury but a threshold question for the court on the issue of what duty was owed. Id. That court reasoned that the physician did not have a duty to the third party to warn the patient because the physician had neither the right nor the ability to control the conduct of the patient. Id. The court also noted that it would be very difficult for someone to prevent another person from driving in an impaired condition. Id. at 398. The court further wrote that one caiinot assume that a person who is advised not to drive will actually respond and refrain from driving. Placing a legal duty on a physician to warn may not be effective to eliminate the risk in many cases because patients do not always heed the admonitions of their physicians, even when the consequences may be life-threatening to the patient or to others. Id.
For her second point on appeal, Mrs. Young argues that if the trial court intended to enter judgment on the basis of causation, it was error to do so. After granting the Center and Nurse Brown’s motion on the first point of duty, Judge Piazza stated, “I’m not sure about the second issue as to causation, it could be, you know, circumstantial evidence[.] . . . On the proximate causation, I really don’t know. That may be a jury question, but if we were to go to a jury right now, I would direct a verdict on the first issue. So, I think having said that, and I may be wrong, I’m going to let the Court of Appeals and the Supreme Court decide this.” The written order states, “Comes now this Honorable Court upon the Defendants’ Motion for Summary Judgment and upon due consideration of the applicable fact, law and oral argument of counsel, the Court hereby finds that the Motion should be, and hereby is, granted.” The trial court did not grant summary judgment on the basis of causation, and therefore we do not address this point on appeal.
Affirmed.
Hannah, C.J., Brown and Gunter; JJ., concur.
Imber, J., dissents. | [
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Donald L. Corbin, Justice.
Appellant Amy Bankston appeals the judgment of the Pulaski County Circuit Court convicting her of one count of second-degree murder and three counts of terroristic act and sentencing her to four consecutive terms of twenty years’ imprisonment. For reversal, Appellant argues that the trial court erred in excluding the testimony of a psychiatrist and in refusing to instruct the jury on the lesser-included offense of reckless manslaughter. This case was certified to us from the Arkansas Court of Appeals as presenting an issue needing further development or clarification of the law pertaining to the admissibility of expert testimony of mental disease or defect to show a lack of intent where the defendant has not presented the insanity defense. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b)(l). We find no error and affirm.
Because Appellant does not challenge the sufficiency of the evidence against her, it is not necessary to recite in great detail the facts surrounding her crimes. Suffice it to say that on December 4, 2000, Sharon Frank was driving a blue Suburban on Roosevelt Road in Little Rock. In the vehicle with Mrs. Frank were her husband and two of her children, who were then ages five and seven. The Suburban belonged to Mrs. Frank’s brother, James Bankston, who was Appellant’s estranged husband. As Mrs. Frank was driving down Roosevelt Road, she saw Appellant coming toward her in her car. Shortly after passing Appellant, Mrs. Frank was forced to stop for a red light. When she looked into her rearview mirror, she saw Appellant make a U-turn in the middle of the road and pull in behind her at the light. An unknown car was stopped between the two vehicles.
Mrs. Frank then saw Appellant get out of her car, with a gun in her hand, and walk up behind the Suburban. She told her husband what she saw, and he told the children to get down and instructed his wife to drive through the red light. However, before Mrs. Frank could actually move her vehicle, she heard four gunshots. She then saw her five-year-old son, Jamal Wood, lying on the floor, having been shot in the head. Jamal later died.
Appellant was charged with one count of capital murder and three counts of terroristic act. During the trial, she presented testimony from several witnesses to the effect that she and her estranged husband had a volatile relationship during the months prior to the shooting. Her seven-year-old son and her sister testified about an incident that likely occurred some time in October 2000, in which Bankston had choked Appellant. Appellant’s mother testified to an incident, that also likely occurred in October 2000, in which Bankston had destroyed some of Appellant’s property. Finally, Appellant’s son testified that two days prior to the shooting, Bankston had rammed Appellant’s car with his, causing slight damage to Appellant’s car. Appellant asserted that the foregoing testimony was evidence that she was provoked by Bankston into taking the actions she did, namely shooting into his Suburban while it was stopped at a red light.
Based on the foregoing defense testimony, Appellant sought and received an instruction on the lesser-included offense of manslaughter, under Ark. Code Ann. § 5-10-104(a)(1) (Repl. 1997). That section provides that a person commits manslaughter if:
He causes the death of another person under circumstances that would be murder, except that he causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse. The reasonableness of the excuse shall be determined from the viewpoint of a person in the defendant’s situation under the circumstances as he believes them to be[.]
As further evidence of manslaughter, Appellant sought to present testimony from Dr. Irvin Kuo regarding his diagnosis of her as having mild mental retardation and schizo-affective disorder. Appellant contended that Dr. Kuo’s testimony was relevant because section 5-10-104(a)(1) requires the jury to view the reasonableness of the excuse “from the viewpoint of a person in the defendant’s situation under the circumstances as he believes them to be[.]”
The trial court ruled that the expert testimony from Dr. Kuo was inadmissible because Appellant was not proceeding with an insanity defense. As support for its ruling, the trial court relied on this court’s holdings in Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994), and Hinkston v. State, 340 Ark. 530, 10 S.W.3d 906 (2000). In Stewart, this court held that expert testimony as to whether the defendant formed the specific intent to commit the crime is inadmissible, unless the defense is one of insanity. This court explained:
We recognize that psychiatric testimony concerning whether a defendant has the ability to conform his conduct to the requirements of law at the time of the killing as part of an insanity defense may seem in some cases to approximate testimony on whether the defendant had or did not have the required specific intent to commit murder at a precise time. We draw a distinction between the two categories of testimony, however. A general inability to conform one’s conduct to the requirements of the law due to mental defect or illness is the gauge for insanity. It is different from whether the defendant had the specific intent to kill another individual at a particular time. Whether Stewart was insane certainly is a matter for expert opinion. Whether he had the required intent to murder Ragland at that particular time was for the jury to decide.
316 Ark. at 159, 870 S.W.2d at 755. In Hinkston, this court held that the expert testimony proffered by the defense, to the effect that the defendant lacked the ability to conform his conduct to the requirements of the law due to mental disease or defect, was not relevant because the defendant was not asserting the insanity defense.
For reversal, Appellant argues that the trial court’s ruling was erroneous. While she concedes that she was not asserting the insanity defense at trial, she argues that Dr. Kuo’s testimony was relevant to show that she was acting under the influence of an extreme emotional disturbance at the time of the shooting. She contends that his testimony was evidence that would have allowed the jury to fulfill its requirement under section 5-10-104(a)(l) to judge the reasonableness of her excuse for killing Jamal from the viewpoint of a person in Appellant’s situation and under the circumstances as she believed them to be. She argues that unlike the defendants in Stewart and Hinkston, she was not attempting to get Dr. Kuo to testify as to the ultimate issue in the case, i.e., whether she acted with the requisite mental state to commit the crimes for which she was charged.
The State argues that Appellant is erroneously viewing the term “extreme emotional disturbance” as being the equivalent of “mental disease or defect.” The State asserts that the “extreme emotional disturbance” found in section 5-10-104(a)(l) refers to an emotional disturbance caused by some type of provocation and is therefore akin to the bygone concept of “heat of passion.” The State asserts further that the term does not refer to a diminished mental capacity due to mental disease or defect. We agree.
This court has long held that the type of manslaughter provided in section 5-10-104(a)(l), which was formerly called voluntary manslaughter, requires a showing of both extreme emotional disturbance, or heat of passion, and provocation. The type of emotional disturbance, or passion, referred to in the statute is that resulting from the provocation, as this court explained in Clardy v. State, 96 Ark. 52, 131 S.W. 46 (1910):
The passion that will reduce a homicide from murder to manslaughter may consist of anger or sudden resentment, or of fear or terror; but the passion springing from any of these causes will not alone reduce the grade of the homicide. There must also be a provocation which induced the passion, and which the law deems adequate to make the passion irresistible. An assault with violence upon another who acts under the influence thereof may be sufficient to arouse such passion; but every assault is not necessarily a sufficient provocation to mitigate the crime from murder to manslaughter; and words or conduct, however insulting or offensive, are not adequate to reduce the crime to manslaughter, although the homicide was committed in a passion provoked by them; and mere threats or menaces, where the person killed was unarmed and neither committing nor attempting to commit violence on the defendant at the time of the killing will not free him of the guilt of murder.
Id. at 55-56, 131 S.W. at 47 (emphasis added) (citing Petty v. State, 76 Ark. 515, 89 S.W. 465 (1905); Allison v. State, 74 Ark. 444, 86 S.W. 409 (1905); Green v. State, 45 Ark. 281 (1885); Stanton v. State, 13 Ark. 317 (1853); Wharton on Homicide, 276; 2 Bishop, New Criminal Law, §§ 697, 702).
Similarly, this court held in Collins v. State, 102 Ark. 180, 143 S.W. 1075 (1912):
The grade of a homicide may be reduced from murder to manslaughter by reason of a passion caused by a provocation apparently sufficient to make the passion irresistible. The passion may consist of anger or fear or terror. These are the causes from which the passion springs; and, whether induced by the one or other of these causes, it will reduce the grade of the homicide from murder to manslaughter. It is perfectly proper to show that in a given case the passion did exist for the reason that it was induced by anger suddenly aroused, or by surprise, or by fear, or by terrorf]
Id. at 185-86, 143 S.W. at 1077 (emphasis added).
The foregoing cases were decided under prior law, which defined voluntary manslaughter as that which is committed “upon a sudden heat of passion, caused by provocation, apparently sufficient to make the passion irresistible.” See Ark. Stat. Ann. § 41-2208 (Repl. 1964). Our current manslaughter statute, section 5-10-104, was enacted by the General Assembly as part of Act 280 of 1975, which created our comprehensive Criminal Code. See Harshaw v. State, 344 Ark. 129, 39 S.W.3d 753 (2001). The Original Commentary to this section explains that the term “extreme emotional disturbance” was substituted for “the archaic common law term ‘heat of passion.’ ” It then goes on to explain: “[The Code] treatfs] on a parity with provocation cases in the classic sense, situations where the provocative circumstance is something other than an injury inflicted by the deceased on the actor but nonetheless is an event calculated to arouse extreme mental or emotional disturbance. . . .” (Quoting Model Penal Code § 210.3, Comment at 41 (Tent. Draft No. 9, 1959)). Thus, even though the legislature changed the term “heat of passion” to “extreme emotional disturbance,” it did not change the type of passion or disturbance referred to, namely that resulting from an event of provocation. Indeed, this court has looked to cases under the former law as instructive of the elements required to prove manslaughter under section 5-10-104(a)(1). See Kail v. State, 341 Ark. 89, 14 S.W.3d 878 (2000); Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992).
In Kail, 341 Ark. 89, 14 S.W.3d 878, this court explained that whether the concept is expressed as the former term “heat of passion” or scientifically defined as “extreme emotional disturbance,” a defendant is not entitled to an instruction on manslaughter unless there is a factual basis showing that the defendant killed the victim “in the moment following ‘provocation in the form of physical fighting, a threat, or a brandished weapon[.]’ ” Id. at 94, 14 S.W.3d at 880-81 (quoting Spann v. State, 328 Ark. 509, 515, 944 S.W.2d 537, 540 (1997)). Thus, the element of emotional disturbance may be proven by evidence of an external event calculated to arouse or provoke a reasonable person to take the actions that resulted in the victim’s death. It is not the type of disturbance that is internally caused by mental disease or defect. Indeed, although section 5-10-104(a)(1) is derived from the Model Penal Code, there is a notable distinction in that our statute only refers to “extreme emotional disturbance,” whereas the model code refers to “extreme mental or emotional disturbance.” See Wayne R. LaFave, Substantive Criminal Law § 15.2(b)(10), at 505 (2d ed. 2003) (emphasis added) (quoting Model Penal Code § 210.3).
This court has repeatedly held that it will not reverse a ruling on the admissibility of evidence absent an abuse of discretion, as such matters are left to the sound discretion of the trial court. See, e.g., Wyles v. State, 357 Ark. 530, 182 S.W.3d 142 (2004); Garner v. State, 355 Ark. 82, 131 S.W.3d 734 (2003); Smith v. State, 354 Ark. 226, 118 S.W.3d 542 (2003). There is no such abuse of discretion in this case. The trial court did not err in refusing to admit expert testimony regarding Appellant’s diagnosis of mild mental retardation and schizo-affective disorder. The testimony was not relevant as evidence of “extreme emotional disturbance” under section 5-10-104(a)(l). As evidenced by the foregoing cases, the type of disturbance that will reduce a homicide from murder to manslaughter is that resulting from an event of provocation, in the form of physical violence, a threat, or a brandished weapon, not that resulting from a mental disease or defect.
Nor was Dr. Kuo’s testimony relevant to show Appellant’s “situation” or the “circumstances” as she believed them to be at the time of the shooting, as those factors also relate to the event of provocation. A plain reading of section 5-10-104(a)(l) reveals that these factors are to be considered by the jury only to evaluate the reasonableness of the excuse for causing the victim’s death. The excuse refers to the event of provocation. Thus, the jury is to consider the reasonableness of the event of provocation from the viewpoint of the defendant, considering the particular situation, i.e., whether it involved a fight or a threatening encounter, and the circumstances as he or she believed them to be, i.e., whether the victim was brandishing a weapon. The defendant’s particular I.Q. and mental infirmities are not part of the consideration. As stated above, our statute does not take into consideration the defendant’s mental disturbance, but only his or her emotional disturbance. Accordingly, it was not error for the trial court to refuse to allow Dr. Kuo’s testimony.
For her remaining point on appeal, Appellant argues that the trial court erred in refusing to instruct the jury on the offense of manslaughter under subsection (a)(3) of section 5-10-104, which provides that a person commits manslaughter by recklessly causing the death of another person. She contends that there was evidence presented below showing that her actions in shooting at her estranged husband’s vehicle were reckless, and that the jury could have believed that she only intended to frighten her husband or damage his property.
This court has repeatedly held that it is reversible error to refuse to give an instruction on a lesser-included offense when there is the slightest evidence to support the instruction. See, e.g., Wyles, 357 Ark. 530, 182 S.W.3d 142; Gaines v. State, 354 Ark. 89, 118 S.W.3d 102 (2003); Brown v. State, 347 Ark. 44, 60 S.W.3d 422 (2001). Thus, we will affirm a trial court’s decision not to give an instruction on a lesser-included offense only if there is no rational basis for giving the instruction. Id.
During the instruction conference below, the trial court asked defense counsel to explain the evidentiary basis for instructing the jury that Appellant had acted recklessly. Defense Counsel replied: “If the jury felt that she shot the gun not with an, excuse me, not with an intent to kill, but maybe just out of frustration or an intent to scare Mr. Bankston[.]” The trial court then asked: “Wouldn’t that be knowingly and second degree murder?” The deputy prosecutor responded that Appellant’s actions were, at a minimum, done knowingly, based on the evidence that showed that she “shot into a car knowing that there were people in it.” The trial court agreed with the prosecution and denied the instruction.
For reversal, Appellant asserts that there was evidence presented below showing that she and her estranged husband had been engaged in a “violent struggle” for some period of time and that she had been assaulted by her husband prior to the shooting. She asserts that based on this evidence, it is rational to infer that when she saw her husband’s Suburban, she shot at it with the intent to scare him, not to kill him, or that she shot at it with the intent to cause damage to the vehicle.
Arkansas Code Annotated § 5-2-202(3) (Repl. 1997) provides:
A person acts recklessly with respect to attendant circumstances or a result of his conduct when he consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation].]
The State argues that Appellant’s act of shooting four times into an occupied vehicle stopped at a stoplight goes beyond a gross deviation of the standard of care that a reasonable person would observe. It contends that Appellant’s actions in shooting into the Suburban could never be viewed as rational activity that was simply carried out in a reckless manner. Rather, it asserts that her actions were intentional, regardless of whether she intended to bring about the particular result, namely the death of five-year-old Jamal.
The record reflects that the prosecution presented testimony from two eye witnesses, Sharon Frank, the victim’s mother and the driver of the Suburban, and Taeishia “Monique” Walker, a passenger in Appellant’s car. Mrs. Frank testified that she had borrowed her brother’s (Appellant’s estranged husband’s) Suburban because her vehicle had broken down. She stated that she had been driving the vehicle for the better part of the past three months, and that Appellant was aware that she had borrowed the vehicle, because she had spoken to her brother about it in front of Appellant. On the night of the shooting, Mrs. Frank saw Appellant driving her vehicle on Roosevelt Road, approaching Mrs. Frank and her family. She saw Appellant make a U-turn in the street and pull up behind the Suburban at a stoplight. Mrs. Frank then saw Appellant get out of her car, holding a gun with both of her hands. She then said, “Oh, my God, Amy has a gun.” Mrs. Frank’s husband told the children to get down and told her to drive through the red light. Due to the cross-traffic, however, Mrs. Franks was not able to drive through the intersection before Appellant fired four shots, one of which struck and killed her five-year-old son, Jamal.
Ms. Walker testified that she was with Appellant and Appellant’s half-brother and boyfriend, Randy Allen, at the time of the shooting. She said that she did not realize what was happening until Appellant stopped her car at the red light, got out, and told Allen to give her the gun, which was under Allen’s seat. Ms. Walker said that Appellant was not excited or upset at the time, and that she had asked Allen for the gun in a normal tone of voice. Ms. Walker then watched as Appellant approached the back of the Suburban and shot four or five times. When Appellant had finished shooting at the Suburban, Ms. Walker stated that she walked back to the car and said to Allen, “Who’s the punk now?” to which Allen replied, “Sister, you ain’t no punk.” Ms. Walker stated that Appellant and Allen were smiling, like nothing had happened. As they drove away from the scene, Appellant told Allen to get rid of the gun. She also told Ms. Walker not to tell anybody what had happened.
The foregoing evidence does not provide a rational basis for instructing the jury on the offense of reckless manslaughter. Nothing in Mrs. Frank’s or Ms. Walker’s testimony supports the conclusion that Appellant’s actions were reckless or that she only intended to scare her estranged husband or damage his Suburban. Indeed, even the testimony presented by defense witnesses concerning prior incidents of violence between Appellant and her husband does not support her argument. What the evidence shows is that Appellant fired a gun four times into a stopped vehicle that she knew was occupied. State’s Exhibits 1 and 2 show that the shots were fired into the back of the vehicle, on the driver’s side, and that two of the shots entered the vehicle at a level even with the tops of the seats. Jamal, who was seated in the back seat, on the driver’s side of the vehicle, was shot in the head. We agree with the State that Appellant’s actions went beyond a gross deviation of the standard of care that a reasonable person would observe. Regardless of what her intentions may have been, the evidence shows that her actions were deliberate, not merely reckless. We thus affirm the trial court’s refusal to instruct the jury on the offense of reckless manslaughter.
Affirmed.
Both Appellant’s sister and her son testified that the choking incident had occurred approximately two weeks prior to the December 4 shooting. However, the prosecution pointed out on cross-examination that the home in which the incident took place had actually burned down in October.
In its brief on appeal, the State acknowledges an inconsistency between the holding in Stewart, 316 Ark. 153, 870 S.W.2d 752, and Ark. Code Ann. § 5-2-303 (Repl. 1997), which provides: “Evidence that the defendant suffered from a mental disease or defect is admissible to prove whether he had the kind of culpable mental state required for commission of the offense charged.” However, we do not attempt to reconcile this potential inconsistency at this time, as both Appellant and the State agree that this issue was never presented below, nor is it pursued by Appellant on appeal. ■ | [
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Per Curiam.
On November 8,2004, Danyel Casey, by her attorney, Charles D. Hancock, filed a motion for rule on clerk in which she claimed that there was good reason her appeal had not been perfected. Her counsel claimed that his secretary failed to inform him that no extension had been granted until after the time had run in which to file the record and, further, that during the course of the proceedings, counsel and his wife had both experienced deaths of parents within a thirty-day period.
On December 2, 2004, this court remanded this matter to the circuit court for findings of fact on attorney error. See Casey v. State, 359 Ark. 522, 199 S.W.3d 56 (2004) (per curiam). Those findings have been returned by the circuit court and include the following:
1. This Court has ascertained that Charles D. Hancock asserts that Sara Talbert, a Public Defender secretary for Lonoke County was to assist in obtaining an extension of time to lodge the record.
2. That Sara Talbert has written this Court stating that she did not know about a request for extension of time and therefore did not request one.
3. That Mr. Hancock did indeed lose a parent and his wife lost a parent within thirty days of each other.
4. While the lack of communication between Mr. Hancock and Sara Talbert might be considered neglect in the strict sense of the rules, but [sic] this Court would find that it is excusable neglect and request the Clerk allow the lodging of the record without sanctions against Mr. Hancock.
We conclude that while there was attorney error on the part of Mr. Hancock in failing to seek a timely extension of time in which to file the record, such error was excusable based upon the findings of the circuit court.
Attorney error excused. | [
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Jim Gunter, Justice.
This appeal arises from an order entered by the Crawford County Circuit Court granting a motion to dismiss filed by appellee, Edward F. Thicksten, pursuant to Ark. R. Civ. P. 12(b)(6). Appellant, Cliff Biedenharn, appeals the trial court’s order of dismissal. On appeal, appellant argues that the trial court erred in dismissing his complaint because appellee was a dual-office holder. We hold that appellant’s first-amended complaint states sufficient frets to withstand a Rule 12(b)(6) motion to dismiss, and we reverse and remand the case for disposition consistent with this opinion.
On October 9, 2002, appellant, representing similarly situated taxpayers, filed a class-action, illegal-exaction lawsuit. In his first-amended complaint, he averred that appellee, a resident of Crawford County, was a state representative and received payment for that position. While a state representative in the Arkansas General Assembly, appellee cosponsored Act 1362 of 1997 (“Act”), which appropriated funds for the Department of Education and, in section 34 of the Act, created the Cooperative Education Services Coordinating Council (“Council”).
Subsequent to the creation of the Council, appellee was appointed as the director of the Council. Appellant averred that the Council dissolved before the filing of the first-amended complaint in 2002.
In his complaint, appellant alleged that appellee’s appointment as director of the Council violated Ark. Code Ann. § 21-8-304 (Repl. 2004) by using his official position for his own financial and political benefit. He further alleged that appellee violated the following provisions of the Arkansas Constitution: (1) Ark. Const, art. 16, § 3 by misusing public funds because he “illegally collected] a large sinecure from taxpayer funds” as director of the Council while acting in his capacity as state representative; (2) Ark. Const, art. 19, § 20 “inasmuch as [appellee] willfully, and knowingly caused the drafting of Act 1362 of 1997 so as to evade, circumvent, and violate the Arkansas Constitution, for his own financial and political benefit, and to appropriate some $20,000,000 to be spent without any apparent public oversight whatever;” (3) Ark. Const, art. 12, §§ 7 and 12 “by making the State of Arkansas interested in a corporation or association, and by requiring the taxpayers to subsidize said corporation or association without any oversight over the spending of the appropriated funds;” (4) Ark. Const. art. 19, § 12 “by appropriating money without provisions such as to require compliance with the constitutional requirement of an accurate and detailed statement of the receipts and expenditures of the public money;” and (5) Amendment 14 “by creating a special council apparently not controlled by any state laws requiring accountability of state funds.”
Appellant requested in his prayer for relief that appellee return to the state treasury all moneys paid to him by the Council. He also requested the court to enter a judgment declaring appellee ineligible to hold any office paid by public funds, and prohibiting appellee from being paid for the next five years from the date of the court order. Finally, appellant requested costs and attorneys’ fees.
On October 28, 2002, appellee filed a motion to dismiss for failure to state facts upon which relief can be granted pursuant to Ark. R. Civ. P. 12(b)(6). In the brief in support of his motion to dismiss, appellee argued that appellant failed to establish, or even specifically allege, that the director of the Council is a “civil office” under Ark. Const. art. 5, § 10, that appellant’s claim for relief under Ark. Code Ann. § 21-8-304 was barred by the statute of limitations, and that the relief sought had been rendered moot by the enactment of Act 34 of 1999.
A hearing on appellee’s motion to dismiss was held on January 9, 2004. By letter order dated January 14, 2004, the trial court found that appellant failed to state a claim upon which relief could be granted. On January 28, 2004, the trial court entered its order of dismissal, and appellant timely filed his notice of appeal. From this dismissal, appellant brings his appeal.
We have repeatedly set forth our standard of review for orders of dismissal pursuant to Ark. R. Civ. P. 12(b)(6). Branscumb v. Freeman, 360 Ark. 171, 200 S.W.3d 411 (2004). We review a trial court’s decision on a motion to dismiss by treating the facts alleged in the complaint as true and by viewing them in the light most favorable to the plaintiff. Id. In viewing the facts in the fight most favorable to the plaintiff, the facts should be liberally construed in plaintiff’s favor. Id. Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Ark. R. Civ. P. 8(a)(1).
For his sole point on appeal, appellant argues that the trial court erred in granting appellee’s motion to dismiss. Specifically, he contends that appellee violated Ark. Const. art. 16, § 3 and Ark. Code Ann. § 21-8-304, respectively, by acting as a state representative at the same time that he received payment as the director of the Council.
Appellee responds, arguing that the trial court properly found that the allegations in appellant’s first-amended complaint regarding appellee’s dual-office holding and any alleged constitutional violations were without merit and did not state facts upon which relief could be granted.
We decline to address the issue of mootness raised by appellee. Although appellant alleges in his first-amended complaint that appellee was a state representative “at the same time [he] received payment as Director of the Cooperative Education Services Coordinating Council,” appellant did not specifically allege that appellee held a dual civil-office in violation of Ark. Const, art. 5, § 10. Thus, we do not address the issue because it is not properly before us. Based upon our standard of review regarding Rule 12(b)(6) motions, we look to the four corners of the complaint. Sluder v. Steak & Ale of Little Rock, Inc., 361 Ark. 267, 206 S.W.3d 213 (2005) (citing Logan v. Missouri Valley Bridge & Iron Co., 157 Ark. 528, 249 S.W. 21 (1923)).
However, we may still consider appellant’s illegal-exaction claims. The only remaining issue is whether appellee must refund the monies he received as director of the Council. Here, appellant has standing as a taxpayer to pursue the relief authorized by Ark. Const. Art. 16, § 13, which provides:
Any citizen of the county, city, or town may institute suit in [sic] behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.
Id. It is self-executing, and it permits taxpayers to challenge the legality of expenditures of public funds. Beshear v. Ripling, 292 Ark. 79, 728 S.W.2d 170 (1987).
We have held that one who holds a public office illegally may be required to pay back money received as a salary. Beshear, supra (citing Revis v. Harris, 219 Ark. 586, 243 S.W.2d 747 (1951)). We have also held that one who, in good faith, performed the duties of a public office held in violation of a constitutional prohibition would not be required to pay back salary received and thus create a windfall to the state. Beshear, supra (citing Martindale v. Honey, 261 Ark. 708, 551 S.W.2d 202 (1977)).
Further, we have held that, even if an officer holds a job and provides services illegally, he may retain the quantum meruit value of the services he provided. Biedenharn v. Hogue, 338 Ark. 660, 1 S.W.3d 424 (1999). In affirming summary judgment in favor of Hogue, we held that there was no evidence of fraud or bad faith of Bobby Hogue, and he was entitled to retain the salary he earned as quantum meruit for his services as assistant athletic director for development. Id.
With this well-established precedent in mind, we turn to the present case. While appellant cites numerous constitutional provisions, as well as Ark. Code Ann. § 21-8-304, as the basis for the allegations in his complaint, he primarily limits the focus of his appeal to the following two arguments: (1) that appellee violated Ark. Const. art. 16, § 3, and (2) that appellee violated Ark. Code Ann. § 21-8-304.
Article 16, section 3 of the Arkansas Constitution, which outlines the penalty for making a profit out of or misusing public funds, provides:
The making of profit out of public moneys, or using the same for any purpose not authorized by law, by any officer of the State, or member or officer of the General Assembly, shall be punishable as may be provided by law, but part of such punishment shall be disqualification to hold office in this State for a period of five years.
Id.
Appellant further argues that appellee violated Ark. Code Ann. § 21-8-304, which provides:
(a) No public official or state employee shall use or attempt to use his or her official position to secure special privileges or exemption for himself or herself or his or her spouse, child, parents, or other persons standing in the first degree of relationship, or for those with whom he or she has a substantial financial relationship that is not available to others except as may be otherwise provided by law.
(b) No public official or state employee shall accept employment or engage in any public or professional activity while serving as a public official which he or she might reasonably expect would require or induce him or her to disclose any information acquired by him or her by reason of his or her official position which is declared by law or regulation to be confidential.
(c) No public official or state employee shall disclose any such information gained by reason of his or her position, nor shall he or she otherwise use such information for his or her personal gain or benefit.
Id.
In appellant’s complaint, he alleged that appellee was appointed as director of the Council subsequent to cosponsoring the Act that created the Council, that he “purposely connived to evade the requirements of the law,” that he “purposely drafted the language of Act 1362 § 34 to create the pretense or illusion that the [Council] and the jobs created thereby were not state agencies,” and that he “knew in advance that he would get a highly compensated position as a result of Act 1362.” These allegations in appellant’s complaint, which we must treat as true under Branscumb, supra, raise the questions of fraud and bad faith, which we determined in Hogue, supra, to be pivotal on appellant’s illegal-exaction claims, which include the issue of quantum meruit.
Therefore, based upon the foregoing conclusions, as well as our standard of review regarding Rule 12(b)(6) motions, we hold that the trial court erred in granting appellee’s motion to dismiss. Accordingly, we reverse and remand for the trial court to determine appellant’s illegal-exaction claims and to determine whether quantum meruit is appropriate.
Reversed and remanded.
Hannah, C.J., and Glaze, Corbin, Brown, Imber, and Dickey, JJ., not participating.
Special Chief Justice Ray Spruell and Special Associate Justices Charles A. Banks, Jonann E. Chiles, Carol J. Dalby, Patricia J. Hays, and Sam Hilburn, join. | [
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Annabelle Clinton Imber, Justice.
Appellant Linda Koch, as administratrix of the Estate of Geraldine Elizabeth Doss, and on behalf of the wrongful death beneficiaries of Geraldine Doss, filed suit against Appellees Northport Health Services of Arkansas, LLC, doing business as Covington Court Health & Rehabilitation Center, and Northport Health Services, Inc. Ms. Doss, who was a resident of Covington Court at the time of her death, was eighty-three years old when she was admitted to Covington Court in February 2000. She had just completed a three-week stay at Sparks Regional Medical Center in Fort Smith, where she had been treated for pneumonia, congestive heart failure, insulin-dependent diabetes, renal insufficiency, endstage Alzheimer’s disease, peripheral vascular disease, amputated toes, and pressure sores on her coccyx, shoulder and heels. While Ms. Doss was a resident at Covington, her condition deteriorated. She was afflicted with additional pressure sores, urinary tract infections, and notable weight loss during the period of time between February and July of 2000. In March of that year, Ms. Doss was readmitted to Sparks Hospital because of respiratory problems and congestive heart failure. While in the hospital, Ms. Doss continued to lose weight and her pressure sores worsened. She returned to Covington Court, but in July she was again admitted to Sparks Hospital with pneumonia and infected foot ulcers. At that time, cultures were taken of Ms. Doss’s blood to determine if the infection had spread throughout her system. The results of those tests were negative. Antibiotics were then administered by an intravenous catheter to combat the infection. On July 25, Ms. Doss underwent surgery to debride several pressure sores on her coccyx and heels. On July 27, a second blood culture revealed the presence of a yeast infection. Ms. Doss died in the hospital on July 29,2000, as a result of overwhelming sepsis.
On November 7, 2001, the appellant filed a complaint against the appellees, alleging medical malpractice, negligence, wrongful death, and violations of the Arkansas Long Term Care Resident’s Rights Statute, Ark. Code Ann. § 20-10-1201 et seq. (Repl. 2000). Appellees hired a local attorney, Kirk Dougherty, to assist injury selection. During the course of the trial, the appellant learned of Mr. Dougherty’s position as the appellees’jury consultant. The appellant requested that the court strike two of the sitting jurors based on her assertion that a relationship existed between the jurors and Mr. Dougherty, and they had been seen talking to him during the trial. The circuit court denied this motion, and the empaneled jury eventually reached a verdict in favor of the defense on the medical-malpractice claim, the Resident’s-Rights claim, and the wrongful-death claim. The jury was unable to reach a verdict on the ordinary-negligence claim, and the judge initially declared a mistrial on that claim. However, after a motion by the appellees, the circuit court also entered a verdict in favor of the defense on the ordinary-negligence claim.
Appellant timely moved for a new trial, arguing that the circuit court erred in entering a verdict in favor of the appellees on the ordinary-negligence claim, that a new trial was warranted because of jury misconduct and the misconduct of the prevailing party, and that the jury’s verdict in favor of the appellees was against the preponderance of the evidence. Because the circuit court took no action on the appellant’s motion for a new trial, it was deemed denied pursuant to Ark. R. Civ. P. 59(b) (2004). Appellant now brings the instant appeal. Because this case was assumed by the Supreme Court for caseload balance, jurisdiction is proper pursuant to Ark. R. Sup. Ct. 1-2(g) (2004).
I Misconduct of jurors or prevailing party.
Appellant’s first argument on appeal is that she was entitled to a new trial because of misconduct by the jury and the appellees. Appellant raised this argument to the trial court in the motion for a new trial, which was deemed denied. We must determine whether the trial court erred in refusing to grant a new trial. The standard in making this decision is whether the trial court abused its discretion. Langston v. Hileman, 284 Ark. 140, 680 S.W.2d 89 (1984).
Appellant first argues that the silence of two jurors about knowing Mr. Dougherty requires a new trial. While a juror is required to reveal information he or she knows could cause prejudice, a juror is not required to bring to the court’s attention information that the juror does not realize might bear upon his credibility as a juror. Big Rock Stone & Material Co. v. Hoffman, 233 Ark. 342, 344 S.W.2d 585 (1961); Kristie’s Katering, Inc. v. Ameri, 72 Ark. App. 102, 35 S.W.3d 807 (2000). Appellant cites numerous cases where a new trial was granted when jurors failed to inform the court of potential issues reflecting on their qualifications as fair and impartial jurors but provides no case supporting the idea that a juror can commit misconduct by failing to bring to the court’s attention information the juror does not realize would bear on his or her impartiality. In fact, two cases specifically suggest otherwise. In Kristie’s Katering, Inc., supra, the appellant, Kristie’s, argued that it was entitled to a new trial because one of the jurors failed to disclose that her son had been ejected from Kristie’s nightclub twice. The Arkansas Court of Appeals disagreed, noting that there was no evidence that the juror knew her son had been ejected from the appellant’s nightclub or even that she knew he went there. Furthermore, in Big Rock Stone & Material Co. v. Hoffman, supra, this court reversed a trial court’s grant of a new trial where one of the jurors was unknowingly being represented by appellant’s counsel. We stated:
Here it is established by the undisputed proof as well as by the trial court’s finding of fact that the plaintiffs could not have been prejudiced by [the juror’s] participation in the case. [The juror] had no knowledge that a suit had been filed in his behalf by [the appellant’s firm] or by anyone else, and it was therefore impossible for the pendency of that case to have any effect whatever upon his deliberations and conclusions as a juror.
Id. at 344, 344 S.W.2d at 587. In Zimmerman v. Ashcraft, 268 Ark. 835, 597 S.W.2d 99 (Ark. App. 1980), perhaps the strongest case cited by the appellant, the Court of Appeals upheld the grant of a new trial where the jurors “certainly could have been aware they were not answering truthfully.” Zimmerman v. Ashcraft, 268 Ark. at 837, 597 S.W.2d at 101.
The present case is more akin to Kristie’s Katering and Big Rock Stone than to the Zimmerman case, in that the jurors could not have known that they were withholding information that might bear on their impartiality. The appellant seems to argue that the jurors should have realized they had an obligation to disclose their relationship with Mr. Dougherty because “they surely knew he was an attorney and were clearly aware of his presence” in the courtroom. While the jurors may have been aware that Mr. Dougherty was an attorney, he was not identified as a member of either legal team. He was merely sitting in the courtroom and observing the voir dire process. Under these circumstances, the jurors could not possibly be expected to realize that they had a responsibility to disclose their relationship with Mr. Dougherty, and their failure to do so cannot constitute juror misconduct.
Appellant’s second contention is that the conversations between Mr. Dougherty and the two jurors necessitate a new trial. Appellant’s primary authority for this point is the case of Langston v. Hileman, 284 Ark. 140, 680 S.W.2d 89 (1984). In Langston, this court overruled a trial court’s denial of a motion for new trial where the jury foreman admitted to talking to one of the witnesses during a recess. The court noted that the trial court had specifically instructed the jury, “Please have no conversation with the attorneys, with anyone who is a party in the case or with anyone who is believed by you to be a witness in the case.” Id. at 141. In reversing the trial court’s decision to deny a new trial, we stated, “It is a well established principle that ‘justice ought not only to be fair, but appear to be fair.’ When we consider the conduct of the jury foreman and the two witnesses we must conclude that in the present case there was at least the appearance of unfairness.” Id. at 142.
The facts in Langston v. Hileman, supra, are notably different from those at issue here. In Langston, the juror was conversing with a witness, a person with whom the juror knew it would be improper to engage in conversation. Similarly, in Moody Equipment & Supply Co. v. Union National Bank, Adm’r, 273 Ark. 319, 619 S.W.2d 637 (1981), a conversation occurred between the juror and a witness. In cases such as these, where the juror knows he or she is conversing with a person he or she has been specifically admonished not to talk to, the actual content of the conversation is irrelevant — the mere fact that the juror knowingly disobeyed a court’s direction is what creates the appearance of impropriety. Where the juror, however, is unaware that the conversation is improper, the fact that such a conversation occurred does not create the appearance of impropriety; rather, the proponent of the new trial must show that the conversation prejudiced the party. Cf. Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992). In Porter, the appellant requested a new trial because he saw a juror conversing with Dr. Harbison, a potential State’s witness. Dr. Harbison testified that he did not hear an instruction not to talk to the jurors but knew not to talk to them about the case. He testified that he talked to the juror during a recess, but that they did not discuss the case. Id. at 148, 823 S.W.2d at 852. The trial court denied the motion for new trial, finding, “It has not been established that the two involved discussed this case.” Id. This court upheld that ruling. Furthermore, even though the Porter case was decided after Langston, supra, and Moody, supra, we did not discuss, much less conclude, that there was an “appearance of impropriety” in the mere fact that Dr. Harbison talked to a juror. See also Clayton v. State, 321 Ark. 602, 906 S.W.2d 290 (1995) (noting that Clayton had the burden of proving that information about an alleged bribe had filtered into the jury room and resulted in prejudice).
Here, while the jurors may have known that Mr. Dougherty was an attorney, they had no way of knowing that he was in any way affiliated with the case. Thus, when our case law is applied to the facts here, the appellant must show actual prejudice and not the mere fact that a conversation occurred between the jurors and Mr. Dougherty. As the testimony of both jurors and Mr. Dougherty established that they had not discussed the case, we conclude that the appellant failed to show actual prejudice.
Additionally, even if the jurors might have realized that Mr. Dougherty was somehow involved with the case, they did not know which side he was working with. In a similar situation, the Texas Court of Appeals refused to presume prejudice where a “shadow juror” hired by a jury consultant asked Juror Martinez for a cigarette and a quarter. Mercado v. Warner-Lambert Co., 106 S.W.3d 393 (2003). The Texas Court noted, “Martinez testified that he did not know the shadow juror was associated with either party. . .” Id. at 397. Here, the circuit court concluded that “both the jurors retain impartiality. They have spoken with Mr. Dougherty, but have no association or belief that he is associated with one side or the other, and they have stated it does not affect their ability to try this lawsuit, and the Court feels that it does not.” We cannot say that the circuit court abused its discretion in concluding that the jurors retained their impartiality. Thus, the circuit court did not err in refusing to grant a new trial on grounds of jury misconduct.
Appellant’s third argument is that a new trial is warranted because of the failure of defense counsel and Mr. Dougherty to alert the circuit court to Mr. Dougherty’s relationship with the jurors. The only authority cited by the appellant for this proposition is Kane v. Erich, 250 Ark. 448, 465 S.W.2d 327 (1971), but that case is not instructive on the point. In Kane, the court was faced with a situation where the plaintiff, knowing he had a bad relationship with one of the jurors, allowed the juror to be seated anyway. The plaintiff then wanted to challenge the juror’s participation, arguing that the juror should have revealed his potential conflict. The court disagreed, and held that the plaintiff “knew as much about her difficulties with [the juror] as [the juror] would have known and under the circumstances appellant owed an obligation to the trial court, the witnesses, and the other jurors to call the matter to the court’s attention at the earliest possible moment.” Id. These facts do not control the facts at hand, where the party complaining of juror misconduct is not the party who was aware of the conflict in the first place.
The central question is whether the appellees’ counsel had a duty to identify to the appellant or to the court the identity of their jury consultant. Currently, attorneys are given the ability to make their use of a jury consultant as public or private as they choose. 3 Successful Partnering Between Inside and Outside Counsel § 64:13 (2004). Some lawyers choose never to reveal to opposing counsel that they are using a jury consultant. Id. Others choose to have the jury consultant watch from the gallery, as was the case here. Still others allow the consultant to sit beside them at the counsel table during voir dire and introduce them to the jury as a consultant. Id. Ultimately, “the decision about whether and when to reveal the consultant’s work to opposing counsel is purely a strategic one.” Id. Thus, as the appellees had no duty to report the identity of Mr. Dougherty, the trial court’s refusal to grant a new trial on this point cannot be an abuse of discretion.
Furthermore, while Mr. Dougherty undoubtedly knew that it was inappropriate for him to converse with a member of a jury he helped choose, his actions alone do not warrant a new trial. In a similar context, we have upheld a trial court’s refusal to grant a mistrial based on prosecutorial misconduct absent any showing of actual prejudice. Williams v. State, 294 Ark. 345, 742 S.W.2d 932 (1988). In Williams, we stated, “We consider misconduct on the part of counsel on the facts of each case. What is prejudice in one case might not be in a similar case.” Id. at 351, 742 S.W.2d at 936. As noted earlier, the jurors themselves were unaware that Mr. Dougherty was associated with the case. We hold that, under these circumstances, the circuit court did not abuse its discretion in denying the motion for a new trial.
II. Ordinary-negligence claim
For their second issue on appeal, the appellant contends that the judge erred in failing to declare a mistrial on the ordinary-negligence claim. As we noted earlier, the jury was unable to reach a verdict on that claim. Appellant suggests that, because the Resident’s-Rights claim is a separate claim from the ordinary-negligence claim, the jury’s response to an interrogatory finding no negligence in connection with the Resident’s-Rights claim is not applicable to the ordinary-negligence claim. Furthermore, the appellant asserts that the jury understood the distinction between the two claims, as the distinction was established in the jury instructions. In fact, the jury instructions did include a separate instruction detailing the components of a Resident’s-Rights claim under Ark. Code Ann. 20-10-1201 et seq. (Repl. 2000), which read:
Resident’s Rights Claim. The Estate of Geraldine Elizabeth Doss claims damages for injuries because of violation of Geraldine Elizabeth Doss’s rights under Arkansas Code 20-10-1201. Under the Resident’s Rights Act, Geraldine Elizabeth Doss, as a resident of a long term care facility, has certain rights including but not limited to:
One, the right to receive adequate and appropriate health care and protective and support services, including social services, mental health services if available, planned recreational activities, and therapeutic and rehabilitative services consistent with the resident care plan with established and recognized practice standards within the community and with rules adopted by the agency.
Two, the right to be treated courteously, fairly, and with the fullest measure of dignity.
In contrast, the instruction on negligence read:
The Estate of Geraldine Elizabeth Doss claims damages for ordinary negligence from Northport Health Services of Arkansas, LLC, doing business as Covington Court Health & Rehabilitation Center, and Northport Health Services, Incorporated, and has the burden of proving each of three essential propositions.
First, that the plaintiff has sustained damages; Second that the defendants were negligent; and Third, that such negligence was a proximate cause of the damages.
By reviewing these instructions, it is clear that the jury was informed of the difference in the two claims.
Appellant argues that the trial judge could not apply the answers from the interrogatory dealing with Resident’s Rights to the ordinary-negligence claim because the two claims were separate claims. Our decision in Leech v. Missouri Pac. R. Co., 189 Ark. 161, 71 S.W.2d 467 (1934), is dispositive on this issue. In Leech, the appellant brought suit against Missouri Pacific Railroad for the death of her husband. In her suit, she alleged her husband’s death was the result of the railroad’s negligence. She sought damages in the amount of $45,000.00 for the benefit of herself and her son, as well as damages in the amount of $5,000.00 in her representative capacity for the benefit of her husband’s estate. Id. The jury returned a verdict of $3,750.00 for “damages for the benefit of the estate of the deceased.” Id. at 162, 71 S.W.2d at 468. On appeal, the appellant contended that she was entitled to a verdict for the benefit of herself and her son as well because “in order to find a verdict for the benefit of the estate it was necessary for the jury to find that appellee and Graham were negligent and that deceased was not.” Id. We rejected this argument, stating:
It does not follow, however, that because two separate and distinct causes of action are tried by the same jury that the finding of facts in one cause is binding on the jury in the other cause of action if there is a dispute in the testimony. Although there was evidence tending to show concurrent negligence on the part of Graham and appellee and no negligence on the part of deceased, yet there was evidence tending to show no negligence on the part of appellee, and the jury was at liberty to so find in the cause of action on behalf of appellant for the benefit of herself and son, as much so as if the two causes of action had been tried separately instead of together. Notwithstanding the causes of action may be tried together under the provisions of the statute, they are wholly independent of each other, and the finding of the jury in one is not binding upon the jury in the other if the facts are in dispute as they were in this case.
Id. The above-quoted analysis in Leech suggests that, in a case involving more than one claim, a jury can properly reach different determinations on negligence for each claim. Similarly, the instant case involved two separate claims, an ordinary-negligence claim and a statutory claim, where the jury reached a different conclusion on the facts for the Resident’s-Rights claim and the ordinary-negligence question. Because the Resident’s-Rights claim is a statutory claim separate from the common-law claim of ordinary negligence, the jury was entitled to reach conflicting results in relation to those claims. Pursuant to our decision in Leech, the circuit court should have acknowledged and respected the jury’s right to reach different determinations on the separate and distinct claims. Accordingly, we hold that the circuit court erred in failing to declare a mistrial on the ordinary-negligence claim, and we reverse and remand on this issue for further proceedings consistent with this opinion.
III. Preponderance of the evidence
For appellant’s third point on appeal, appellant asserts that the jury’s verdict was against the preponderance of the evidence. When a motion for new trial is made on the ground that the verdict was clearly against the preponderance of the evidence and is denied by the trial court, this court will affirm if there is substantial evidence to support the verdict. Depew v. Jackson, 330 Ark. 733, 957 S.W.2d 177 (1997). Substantial evidence is evidence of substantial force and character to compel a conclusion one way or the other with reasonably certainty. Id. The evidence must force the mind to pass beyond suspicion or conjecture. Id. In examining whether substantial evidence exists, the verdict is given “the benefit of all reasonable inferences permissible in accordance with the proof.” Id. (citing Patterson v. Odell, 322 Ark. 394, 909 S.W.2d 648 (1995)). These standards apply even when the trial court did not actually rule on the motion and it was deemed denied. See Depew v. Jackson, supra (applying the “substantial evidence” standard of review where the motion for new trial was deemed denied).
Appellant’s primary authority for the idea that the verdict is not supported by substantial evidence is Advocat, Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003). She claims that the evidence in this case is comparable to the evidence found sufficient to uphold the jury’s verdict in favor of the plaintiff in Sauer, and thus the verdict for the defendant in this case should be overturned. This comparison is unpersuasive, however, because the court in Sauer was affirming the jury’s verdict, albeit on condition of remittitur as to the compensatory and punitive damage awards. In contrast, here, the appellant asks us to reverse the verdict of the jury. On appeal, this court views the evidence in the light most favorable to the appellee and affirms if there is substantial evidence to support the jury’s verdict. Bank of America, N.A. v. C.D. Smith Motor Co., Inc., 353 Ark. 228, 106 S.W.3d 425 (2003).
In the instant case, the record reflects certain critical evidence regarding the extent of Mrs. Doss’s illness prior to and separate from her care at Covington Court. Dr. Richard Hinkle, Ms. Doss’s family physician, testified that she was “an ill woman at the time of her admission to Covington Court.” She already had several chronic medical illnesses, including diabetes, hypertension, and Alzheimer’s. Dr. Hinkle testified that these illnesses had progressed to “end stage complications and increasing debilitation.” Furthermore, Bob Doss, the decedent’s son, testified that her condition had been rapidly deteriorating over the course of the year before her admittance to Covington Court. Another critical issue in the trial was the development and treatment of Ms. Doss’s pressure sores and other lesions on her heels, legs, buttocks and coccyx. Bob Doss testified that Ms. Doss began developing skin sores as early as 1999. Additionally, the appellees introduced evidence that Ms. Doss already had several lesions upon her admittance to Covington Court in Febrauary. Furthermore, throughout the course of her stay, Covington Court tried many treatments, including Duoderm, Betadine, and Saf-Clens, in an effort to heal the skin sores.
While the appellant attempted to show that Covington Court’s negligence was the ultimate cause of Ms. Doss’s yeast infection and resulting death, Dr. Hinkle testified that a yeast infection is not necessarily an indication of poor care and can develop even with good care. He also testified that such infections are very common in patients with diabetes. Furthermore, when Ms. Doss was taken from Covington Court and admitted to Sparks Hospital, her blood culture did not show the presence of yeast. Dr. Hinkle inferred from this result that yeast was not present in her blood at this time. A subsequent blood culture revealed the presence of yeast, and Dr. Hinkle opined that Ms. Doss ultimately died from sepsis in the blood caused by yeast that entered her blood through a central line catheter implanted by Sparks.
While the appellant did provide testimony that Covington Court was understaffed in career nursing assistants, (CNAs), the appellees countered with testimony that Covington Court was routinely overstaffed with licensed practical nurses (LPNs) who would assist with the CNA duties. Numerous CNAs and LPNs testified to turning and cleaning Ms. Doss on a regular basis. In fact, as Ms. Doss’s condition worsened, Covington Court modified her turning schedule from once every two hours to once an hour to account for the change. When they determined that once an hour was actually doing more harm than good, they changed the turning schedule back to once every two hours.
The evidence laid out by the appellees suggested that Ms. Doss had numerous serious conditions prior to her admittance to Covington Court. According to her own physician, Ms. Doss’s illnesses had progressed to “end stage complications.” Furthermore, according to the testimony of numerous LPNs and CPAs employed by Covington Court, Ms. Doss received ample care for her illnesses, but it simply was not enough to overcome the seriousness of her medical condition. We therefore conclude that there was substantial evidence to support the jury’s verdict in favor of the appellees.
IV. AMICivAth 601
Appellees cross appeal, arguing that Arkansas Model Civil Jury Instruction 601 should not have been submitted to the jury. AMI Civ. 4th 601 instructs the jury that a violation of a statute or regulation, although not necessarily negligence, is evidence of negligence to be considered by the jury along with all of the other facts and circumstances in the case. AMI Civ. 4th 601. In this case, the circuit court instructed the jury using various regulations from the Code of Federal Regulations (CFR) governing nursing homes receiving Medicare and Medicaid. Appellees maintain that (1) that these provisions of the CFR are not eligible for an AMI Civ. 4th 601 instruction because they do not create a standard of care, and (2) the instruction was abstract and did not relate to the facts presented at trial. Because the first argument was not preserved for appellate review, and we find no merit in the second argument, we affirm on this point.
At trial, the following instruction was read to the jury:
At all times material to this case there were in force in the State of Arkansas, regulations providing requirements for long term care facilities which provide:
The facility must care for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident’s quality of life. The facility must promote care of residents in a manner and environment that maintains or enhances each resident’s dignity and respect in full recognition of his or her individuality.
Assessments must be conducted prompdy after a significant change in the resident’s physical or mental condition. Each resident must receive, and the facility must provide, the necessary care and services to attain or maintain the highest practical physical, mental, [sic] psychological wellbeing in accordance with the comprehensive assessment and plan of care.
Based upon the comprehensive assessment of a resident, the facility must ensure that a resident who is unable to carry out activities of daily living receives the necessary services to maintain good nutrition, grooming, and personal and oral hygiene. Based upon the comprehensive assessment of a resident the facility must ensure that a resident who enters the facility without pressure sores does not develop pressure sores unless the individual’s clinical condition demonstrates that they were unavoidable.
Based upon the comprehensive assessment of a resident the facility must ensure that a resident having pressure sores receives necessary treatment and services to promote healing, prevent infection, and prevent new sores from developing.
Based upon a resident’s comprehensive assessment, the facility must insure [sic] that a resident maintains acceptable parameters of nutritional status such as body weight and protein levels, unless the resident’s clinical condition demonstrates that this is not possible.
The facility must provide each resident with sufficient fluid intake to maintain proper hydration and health. The facility must have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practical, physical, mental and psychosocial wellbeing of each resident as determined by the resident assessment and individual plans of care.
The facility must employ sufficient support personnel competent to carry out the functions of the dietary services. The facility must maintain clinical records on each resident in accordance with accepted professional standards and practices that are complete and accurately documented.
The following must be charted upon an occurrence: Significant changes in the resident’s physical, mental or psychosocial status, i.e. deterioration in health, mental or psychosocial status and any hfe-threatening conditions or clinical complications. Charting will be required on every shift until the resident’s condition becomes stable.
The following skin conditions include date of onset and weekly progress notes. Documentation must identify the skin problem, stage, size, color, odor and drainage if any. The chart shall also document the date and time of treatments and dressings.
The facility must be administered in a manner that enables it to use its resources effectively to attain or maintain the highest practical physical, mental and psychosocial wellbeing of each resident.
A violation of one or more of these regulations or statutes, although not necessarily negligence, is evidence of negligence to be considered by you along with all of the other facts and circumstances in this case.
Appellees’ first argument against this instruction is that the federal regulations do not create a standard of care. This argument was not presented to the circuit court and, consequently, is not preserved for appeal. Though the appellees objected to the use of AMI Civ. 4th 601 at trial, they did not make this precise argument to the trial court. At trial, appellees argued:
As to Jury Instruction Number Fifteen, Defendants object to the giving of that instruction which is a violation of statute or ordinance is evidence of negligence. Defendants contend that this is an exceedingly lengthy, drawn out jury instruction which there really is no hope for the jury to understand. It gives well in excess of ten or twelve Code of Federal Register references, one to which the jury, the defendants would contend, have no hope of interpreting and applying. It is fully covered by the other instructions in this case. It is confusing and refers to negligence, again going back to our objection to giving this case to the jury on both negligence and medical malpractice.
Notably, the appellees made no mention of the words “standard of care” at any time during their objection. Nonetheless, on appeal, appellees have shifted their argument to contend that the CFRs do not create a standard of care and thus are not an appropriate subject for an AMI Civ. 4th 601 instruction. We will not consider arguments made for the first time on appeal. Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 335 Ark. 701, 120 S.W.3d 525 (2003).
Furthermore, there is no merit to appellees’ argument that the instruction was duplicative or abstract. First, the entire purpose of AMI Civ. 4th 601 is to alert the jury to the existence of regulations that might be relevant to the case and not to establish a standard of care. AMI Civ. 4th 601 provides that violations of these regulations can be considered evidence of negligence on the part of the defendant, even if the regulations themselves do not govern the case. See Dunn v. Brimer, 259 Ark. 855, 537 S.W.2d 164 (1976). In Dunn, Brimer was in an accident where he fell off a ladder that was not properly fastened in place. The trial court issued an AMI Civ. 4th 601 instruction based on certain federal regulations providing that the ladders “shall be fastened and that the area below them shall be kept clean.” Id. at 856, 537 S.W.2d 165. The defendants appealed the use of this instruction, arguing that the federal regulation did not apply to the case because the regulation targeted only employer-employee relationships, and Brimer was hired by an independent contractor. Id. We rejected this argument and quoted Prosser saying:
[Wjhere the statute does set up standard precautions, although only for the protection of a different class of persons, or the prevention of a distinct risk, this may be a relevant fact, having proper bearing upon the conduct of a reasonable man under the circumstances, which the jury should be permitted to consider.
Id. (citing Prosser, Torts, p. 202 (4th ed. 1971)). In other words, the AMI Civ. 4th 601 instruction does not instruct the jury on the relevant standard of care applicable to the facts at hand. Instead, the federal regulation is merely evidence of the types of considerations that should bear on the reasonable person. Consequendy, under AMI Civ. 4th 601, actions in violation of the regulations can be evidence of negligence to be considered along with the other facts and circumstances in the case. Thus, in this case, the fact that there were other instructions detailing the various standards of care for claims of negligence and medical malpractice would not have been relevant to the issue of whether AMI Civ. 4th 601 should have been submitted to the jury.
Appellees’ second contention is that the AMI Civ. 4th 601 instruction was abstract and not relevant to the facts of the case. In support of that proposition, they only cite to cases where the statute or regulation in question was unquestionably irrelevant to the undisputed facts at hand. For example, in Harkrider v. Cox, 230 Ark. 155, 321 S.W.2d 226 (1959), the defendant in a case involving a car accident objected to instructions pertaining to the obligation to slow down around hills, intersections and other road hazards. This court held the instruction to be erroneous because the facts of the case did not suggest the presence of any hills or other road hazard. In CRT, Inc. v. Dunn, 248 Ark. 197, 451 S.W.2d 215 (1970), the plaintiff was injured when her car slipped on oil spilled from the defendant’s tanker. The trial court gave an instruction noting that an Arkansas statute provided that “[n]o vehicle shall be driven or moved on any highway unless such vehicle is so constructed or loaded as to prevent any of its load from dropping, shifting, leaking, or otherwise escaping therefrom.” Id. The court held that, for such an instruction to be proper, “there must first be some evidence that the spillage was caused either by the construction or the loading.” Id. In both cases, the instruction was not proper because there was no evidence suggesting a violation of the statute. Here, the appellant presented evidence suggesting that the appellees’ care and treatment of Ms. Doss may not have complied with the requirements of the CFR provisions, such as adequate nutrition, care for wounds, and prevention and treatment of pressure sores. Accordingly, we hold that the circuit court did not err in submitting AMI Civ. 4th 601 to the jury.
Affirmed in part, reversed and remanded in part.
We note that this court was precluded in Sauer from reviewing allegations of insufficiency of the evidence on liability due to the appellants’ failure to preserve the argument for appellate review. Advocat, Inc. v. Sauer, 353 Ark. at 61, 111 S.W.3d at 365. | [
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Betty C. Dickey, Justice.
Rose Monday sued the Helena-West Helena School District. (District) for slip-and-fall injuries sustained by her son, Elijah Monday. The District filed a motion for summary judgment, arguing that it has immunity except to the extent that it has applicable liability insurance. The trial court denied the motion for summary judgment, and the District appeals pursuant to Ark. R. App. P. - Civ. 2(a)(10).
On January 3, 2001, as Elijah attempted to exit the District school bus, he slipped on ice that had accumulated on the steps of the bus. He suffered injuries that “necessitated the constant appli cation of medications to relieve the pain,” and has had to undergo “medical treatment by various medical providers and will require additional medical treatment into the unknown future.”
Rose Monday filed a complaint in Phillips County Circuit Court on November 15, 2001, alleging negligence in failing to protect students from harmful conditions and in failing to warn students of dangerous conditions on its buses. The complaint alleged that the District “knew or should have known that the injuries suffered by Elijah Monday could occur or were about to occur.” The District filed a motion for summary judgment, stating that it was immune from liability for a slip-and-fall negligence claim under Ark. Code Ann. § 21-9-301, which provides for only one exception: that a District is liable for its negligence to the extent that it has applicable liability insurance. The District attached an affidavit claiming that it has no general liability insurance policy that would apply to, or indemnify it for, any premises liability/slip-and-fall claim.
Monday filed a response on November 5, 2003, arguing that the District is required to have motor vehicle coverage pursuant to Ark. Code Ann. § 21-9-301 and Ark. Code Ann. § 27-19-713 (Repl. 2004), and that there were genuine issues of fact to be determined. The trial court heard arguments, and on July 29, 2004, it issued an order denying summary judgment.
As a general rule, the denial of a motion for summary judgment is neither reviewable nor appealable. Ozarks Unlimited Resources Coop., Inc. v. Daniels, 333 Ark. 214, 969 S.W.2d 169 (1998); Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 427 (1996). The general rule does not apply where the refusal to grant a summary-judgment motion has the effect of determining that the appellants are 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. Id.; Robinson v. Beaumont, 291 Ark. 477, 725 S.W.2d 839 (1987); see also Ark. R. App. P. - Civ. 2(a)(2), which provides that an appeal may be taken from an order that in effect determines the action and prevents a judgment from which the appeal might be taken. In Robinson, this court held that the refusal to grant the motion for summary judgment amounted to “a denial of appellants’ claimed defense which would have, if allowed, discontinued the action. The qualified immunity claim is a claim of right which is separable from, and collateral to, rights asserted in the complaint. . . .” Robinson, 291 Ark. at 482-83.
A trial court may grant summary judgment only when it is clear that there are no genuine issues of material fact to be litigated, and that the party is entitled to judgment as a matter of law. Harris v. City of Fort Smith, 359 Ark. 355, 197 S.W.3d 461 (2004); Craighead Elec. Coop. Corp. v. Craighead County, 352 Ark. 76, 98 S.W.3d 414 (2003); Cole v. Laws, 349 Ark. 177, 76 S.W.3d 878 (2002). Once the moving party has established a prima facie case showing entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Harris, supra; Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998).
The District argues that the only question before this court is whether it is entitled to claim immunity from suit, which is purely a question of law. A question of law is reviewed on appeal using a de novo standard. Cooper Realty Inv. v. Arkansas Contractors Licensing Board, 355 Ark. 156, 134 S.W.2d 1 (2003); Wal-Mart Stores, Inc. v. P.O. Market, Inc., 347 Ark. 651, 66 S.W.3d 620 (2002). School districts are generally immune from liability for torts, subject to an exception where insurance coverage applies. Ark. Code Ann. § 21-9-301 provides:
(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, commission, 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 shall lie against any such political subdivision because of the acts of its agents and employees.
The District points to Matthews v. Martin, 280 Ark. 345, 658 S.W.2d 374 (1983), where this court held that the impact of Act 165 of 1969 was to grant negligent tort immunity to all employees of the described political subdivisions. Because a political subdivi sion, such as a school district, can only act through its agents, the impact of Matthews was to reinforce the immunity granted by the statute. This court has, since Matthews, recognized immunity of school district employees, and of a district itself, in Cousins v. Dennis, 298 Ark. 310, 767 S.W.2d 296 (1989).
In Bankston v. Pulaski County School District, 281 Ark. 476, 665 S.W.2d 859 (1984), the Pulaski County School District was sued for negligence in the construction of a house, which was built as a part of a vocational education project. This court held that the district was not liable for negligence due to the operation of Ark. Code Ann. § 21-9-301. The immunity for negligent torts afforded to school districts and to school employees, however, is qualified, and an employee or a district can be sued to the extent that applicable coverage exists under a policy of insurance. Carter v. Bush, 296 Ark. 261, 753 S.W.2d 534 (1988).
In Rudd v. Pulaski County Special School District, 341 Ark. 794, 20 S.W.3d 310 (2000), a student-passenger on a Pulaski County school bus shot and killed a fellow student passenger. The District argues that this action is quite similar to the facts in Rudd, in that Rudd involved the failure to supervise students on a school bus, while the instant action involves an alleged failure to supervise the condition of floor surfaces on a school bus.” In Rudd, this court stated:
Appellants also presented a theory of negligence. The issue of negligence was raised in appellants’jurisdictional statement, but the issue of recovery on the basis of negligence giving rise to liability for a tort was not raised in either of appellant’s points on appeal or in the argument section of their brief. Appellants do not appear to contest the grant of summary judgment with respect to the allegation of negligence.
Had appellants pursued the theory of recovery of damages for tort liability under a claim of negligence, they would not have prevailed because of appellees’ sovereign immunity. Under Ark. Code Ann. § 21-9-301[i]t is declared to be the public policy of the State of Arkansas that all... school districts... shall be immune from [tort] liability and from suit for damages except to the extent that they may be covered by liability insurance. No tort action shall lie against any such political subdivision because of the acts of its agents and employees.” Id.
The District argues that, subject to the insurance exception recognized in Carter v. Bush, they cannot be sued for negligence. The only claim presented by appellee Monday is for negligence, and, according to the District, the insurance exception is germane to the issue of the District’s immunity.
The next question is whether the District had an applicable policy of liability insurance. The District maintains that it is immune because no coverage applies to this kind of claim. On the date of the accident, the district apparently had two different insurance policies, one of which was the “School Workers Defense Program,” or “School Employee - School Board Protection Program,” created by the Department of Education in response to Ark. Code Ann. § 6-17-1113 (Supp. 2003). The District attached this policy to its motion for summary judgment. Under the “School Board Protection Program,” Exclusion 7, no protection applies to “any and all claims for damages which are subject to. the affirmative defense of governmental immunity under Arkansas law.” The Program states that “governmental immunity is not waived by this program,” and only provides automobile coverage for those incidents that occur outside the state of Arkansas.
The District also contends that the School Motor Vehicle Self Insurance Program does not apply. However, this court cannot determine whether there is insurance coverage under the motor-vehicle policy because the actual policy is not included for review. The District may be immune from liability but, because it had the burden to make the insurance policy a part of the record, and failed to do so, this court cannot make that determination.
Affirmed.
Glaze, J., not participating. | [
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Jim Hannah, Chief Justice.
Clifton Mason appeals his convictions for first-degree terroristic threatening and first-degree battery by means of a firearm. Mason argues that there is insufficient evidence to sustain his conviction for terroristic threatening. Mason also asserts that this court must reverse his conviction for battery under collateral estoppel or the issue-preclusion arm of the doctrine'of res judicata and Ark. Code Ann. § 5-1-113(2) (Repl. 1997) because his prior acquittal on a charge of possession of a firearm by certain persons prohibited the State from again litigating a crime requiring possession of a firearm.
We hold that there was substantial evidence in support of the conviction for terroristic threatening and affirm on that charge. With respect to battery by means of a firearm, the State argues that the elements in the earlier trial and the elements in this trial on the battery charge differ, precluding the application of collateral estoppel or issue preclusion. We hold that issue preclusion of res judicata and Ark. Code Ann. § 5-1-113(2) precluded the State from attempting to prove in the present trial that Mason possessed a firearm where an earlier jury decided that Mason did not possess a firearm at the time the crimes were alleged to have occurred. We reverse and remand on this charge. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(1) and (6) because this case involves issues of first impression and interpretation of an act of the General Assembly.
Facts
According to the testimony of Jackie Johnson, he and his wife, Latonia Johnson, were in their home February 6, 2002. They were up late cooking for expected company and playing cards. Both Jackie and Latonia testified that Diane Crutchfield came to their house between 12:30 a.m. and 1:00 a.m. on February 7, 2002. According to Jackie, Crutchfield came by because Crutch-field wanted company, and, according to Latonia, Crutchfield came by because she was scared and wanted the Johnsons to accompany her back to her house. Latonia also recounted that Crutchfield wanted to retrieve some money from her house and then return to the Johnson home. Both Jackie and Latonia testified that Mason had been living at Crutchfield’s home for about a month at that point.
About 5:00 a.m., the Johnsons and Crutchfield took a cab to Crutchfield’s house, but found all the doors locked when they arrived. Jackie and Latonia testified that Mason let them in the house by a side door, and Latonia testified that Crutchfield cussed at Mason and told him to go to a back room, which he did. Both Jackie and Latonia testified that the two of them and Crutchfield went to the den and stayed there for about half an hour. According to Latonia, she told Crutchfield to check on Mason because he was being too quiet. According to Jackie, Crutchfield went on her own to check on Mason. According to Jackie, Crutchfield asked him to accompany her, and he did. Jackie testified that when they got to the room, Mason asked, “Why you bitches back here?” Jackie further testified that Mason then became agitated and pulled a pistol.
Latonia testified that after Jackie and Crutchfield went to check on Mason, she heard a commotion, went back to the room, and saw Mason holding a gun. Jackie told the jury that at this point, Crutchfield turned and began to leave, and that he did the same, but that Mason shot him first in the wrist and then in the back as he tried to get away. Latonia testified that she saw these events as well, and that after Jackie went outside, Mason followed him out onto the porch and was still shooting at him. Jackie recounted the same, testifying that Mason grazed his neck with a shot as he and Crutchfield ran across the yard.
According to Latonia, after shooting at Jackie, Mason came back inside, where Latonia was hiding in the dining room, and found her. Latonia told the jury that Mason was holding the gun up at her, and that she grabbed the barrel. Latonia testified that she held onto the barrel, throwing Mason on the dining table, where he said, “Oh bitch, get your ass on out. Come on, get on up out of here.” Latonia stated that she continued to hold onto the barrel and pulled Mason out the back door, where she fell on the steps. She also testified that Mason hit her on the head with the gun. Latonia then stated that Jackie came back, and Mason said, “I’m fixing to kill you.” Jackie testified that he heard Mason saying to Latonia, “I’m going to kill you, I’m going to kill you,” and that Latonia was saying, “Please don’t shoot me. Please don’t shoot me.” Marie Holmes, a neighbor, testified that she saw a man chasing a woman with a gun and heard him threaten to kill her. Both Jackie and Latonia testified that Mason then followed them outside for a time and had the pistol in his possession. The Johnsons testified that they then went inside a house and called 911.
Mason was accused of causing injuries to Jackie and Latonia. He was charged in Count I with battery in the first degree by means of a firearm for the injuries to Jackie, in Count II with battery in the first degree by means of a firearm for the injuries to Latonia, in Count III with possession of a firearm by certain persons, and in Count IV with terroristic threatening in the first degree. On May 10, 2002, Count III, the charge of possession of a firearm by certain persons was severed. On August 13, 2002, the State moved for a continuance to have sufficient time to obtain information on Mason’s former out-of-state convictions; the motion was granted as to Counts I, II, and IV. This meant that Count III, possession of a firearm by certain persons, was tried first. That trial resulted in a not-guilty verdict. Based on this verdict, Mason moved on November 12, 2002, that Counts I, II, and IV be dismissed, based on collateral estoppel and Ark. Code Ann. § 5-l-113(2)(Repl. 1997). The motion was denied, and the circuit court noted that the issue was subject to the “Blockburger test.” Count II was dismissed by the circuit court pursuant to Mason’s motion for a directed verdict.
Terroristic Threatening
Mason argues that there was insufficient evidence to support his conviction for terroristic threatening. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State, and only evidence supporting the verdict will be considered. Id.
The evidence in the case before us showed that Mason came out of the back room of the house, and that everyone fled from him. Latonia engaged in a physical fight with Mason in which she was forced out the door and fell on the steps to the'porch. During the course of this fight, Mason was reported to have said, “Oh bitch, get your ass on out. Come on, get on up out of here,” as well as, “I’m fixing to kill you.” Jackie testified that he heard Mason saying to Latonia, “I’m going to kill you, I’m going to kill you,” and that Latonia was pleading for her life. Also, the neighbor, Marie Holmes, testified that she saw Mason chasing a lady and heard him threaten to kill her.
A person commits first-degree terroristic threatening if, with the purpose of terrorizing another person, he or she threatens to cause death or serious physical injury or substantial property damage to another person. Ark. Code Ann. § 5-13-301 (a)(1)(A)(Repl. 1997). See also Proctor v. State, 349 Ark. 648, 79 S.W.3d 270 (2002). Mason threatened to cause death and made the threat in the course of a physical attack on Latonia, Jackie, and Crutchfield. Thus, there was a threat, and, as required, it was communicated to the victim Latonia, in this case directly by Mason. See Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988); see also Knight v. State, 25 Ark. App. 353, 758 S.W.2d 12 (1988). It also must be a threat intended to terrorize. Id.
Evidence that a person is in a fight, is being forced out of the house, is threatened with death, and pleads for her life constitutes substantial evidence in support of a conviction for first-degree terroristic threatening because there is substantial evidence that the necessary threat was made, as well as an intent that the victim be terrorized by the threat. See Sanders v. State, 326 Ark. 415, 932 S.W.2d 315 (1996). We affirm Mason’s conviction and' sentence for terroristic threatening.
Former Decision on Possession of a Firearm by Certain Persons
Mason alleges that his conviction for battery in the firstdégree by means of a firearm must be reversed based on res judicata, specifically under the collateral estoppel or issue-preclusion facet of res judicata. Mason asserted that it was determined in his prior criminal trial for felon in possession of a firearm that he did not possess a firearm at the time of the events at issue in this case; and, therefore, the State may not again try to prove that he possessed a firearm.
In criminal cases, a bar to prosecution is most often based on double jeopardy principles. The application of principles of res judicata in criminal cases is less common. The application of res judicata has a confused and checkered history and merits a detailed discussion, because the principles of double jeopardy are sometimes confused with res judicata and improperly included in discussions of res judicata. We take this opportunity to clarify the application of res judicata in the criminal law.
“The concept of res judicata has two facets, one being issue preclusion and the other claim preclusion.” Carwell Elevator Co. v. Leather, 352 Ark. 381, 388, 101 S.W.3d 211, 217 (2003). See also Huffman v. Alderson, 335 Ark. 411, 983 S.W.2d 899 (1998). The term res judicata has sometimes been used to refer only to claim preclusion; however, issue and claim-preclusion are distinct legal concepts. East Texas Motor Freight Lines, Inc. v. Freeman, 289 Ark. 539, 713 S.W.2d 456 (1986). “Under claim-preclusion, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim.” Searcy v. Davenport, 352 Ark. 307, 310, 100 S.W.3d 711, 713 (2003). Under issue preclusion, a decision by a court of competent jurisdiction on matters which were at issue, and which were directly and necessarily adjudicated, bars any further litigation on those issues by the plaintiff or his privies against the defendant or his privies on the same issue. Linn v. Nationsbank, 341 Ark. 57, 14 S.W.3d 500 (2000). Issue preclusion along with claim preclusion constitute the doctrine of res judicata. Carwell, supra; Bailey v. Harris Brake Fire Prot. Dist., 287 Ark. 268, 697 S.W.2d 916 (1985).
The rationale for the doctrine of res judicata is the policy of the law to end litigation, once an issue or claim has been fully litigated. East Texas Motor Freight, supra. Res judicata is a common law doctrine. Gideon v. Gideon, 268 Ark. 873, 876, 596 S.W.2d 367 (1980). The concept of res judicata was developed in the common law of this court as well as in the federal courts. In Ashe v. Swenson, 397 U.S. 436 (1970), the federally developed “collateral estoppel” facet of res judicata was declared applicable to the States by way of the Fifth Amendment. This law was later codified as Ark. Code Ann. § 5-1-113(2) (Repl. 1997). Journey v. State, 261 Ark. 259, 547 S.W.2d 433 (1977). It was through the common law that the principles of collateral estoppel, made applicable to the States in Ashe, supra, were developed. Our own common law on res judicata remains viable and relevant. The common law is judicially created law that is developed on a case by case basis. Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979). The common law is dynamic, allowing it to grow and tailor itself to changing needs within the doctrine of stare decisis. Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997).
While the doctrine of res judicata is more often encountered in the context of civil litigation, it is a common-law doctrine that is as applicable in criminal law as it is in civil law. State v. Thompson, 343 Ark. 135, 34 S.W.3d 33 (2000); Edwards v. State, 328 Ark. 394, 943 S.W.2d 600, cert. denied, 522 U.S. 950 (1997) (quoting Schiro v. Farley, 510 U.S. 222, 232 (1994)). Res judicata means that “a thing or matter that has been definitely and finally settled and determined on its merits by the decision of a court of competent jurisdiction.” Hunt v. Perry, 355 Ark. 303, 310, 138 S.W.3d 656, 659 (2003). “The Latin words, res judicata, literally translated into English mean ‘a thing adjudged’ and freely translated into English mean ‘the matter has been decided.’ ” Hastings v. Rose Courts, 237 Ark. 426, 431, 373 S.W.2d 583, 586 (1963).
The doctrine of res judicata should not be confused with more familiar criminal doctrines based on double jeopardy. Both the doctrine of res judicata and the double-jeopardy doctrines of former acquittal or former conviction originate in the common law. The doctrines of former acquittal or former conviction are based on the idea that “no man shall be placed in peril of legal penalties more than once on the same accusation.” Lee v. State, 26 Ark. 260, 264 (1870) (citing Wharton, Criminal Law, p. 574). The doctrine of res judicata is based on the principle that issues and claims properly decided ought not be decided again. East Texas Motor Freight, supra.
At common law, there were special pleas in bar of criminal prosecution that went to the “merits of the indictment, and give a reason why the prisoner ought not to answer it at all, not put himself upon his trial for the crime alleged.” William Blackstone, 4 Blackstone’s Commentaries Ch. 26, para. IV at p. 329 (2d ed. 1769). Two of these special pleas were auterfoits acquit and auterfoits convict. Both were based “on the universal maxim of the common law of England, that no man is to be brought in jeopardy of his life, more than once for the same offense.” Id. at 329-30. The plea of auterfoits acquit is a plea in bar based on a prior acquittal for the crime charged. “And hence, it is allowed as a consequence, that when a man is fairly found not guilty upon any indictment, or other prosecution, he may plead such acquittal in bar of any subsequent accusation for the same crime.” Id. at 329. The plea of auterfoits convict is a plea in bar based on “a former conviction for the same identical crime.” Id. at 330. These principles of the common law were “borrowed” and placed in both the federal constitution and our own state constitution under the idea that no person should be subjected to prosecution for the same offense twice. Lee, 26 Ark. at 264. The plea of auterfoits acquit is noted in Lee, supra, and earlier in Atkins v. State, 16 Ark. 568 (1856). See also Hammond v. State, 173 Ark. 674, 293 S.W.2d 714 (1928).
Like the doctrines of auterfoits acquit and auterfoits convict that are now contained in the constitutional protections against double jeopardy, the doctrine of res judicata also derives from a plea in bar at the common law. As Chief Justice DeGrey stated in the oft-cited case of Rex v. The Duchess of Kingston, 20 Howell’s State Trials 538 (House of Lords, 1776), a criminal case on an indictment for bigamy:
From a variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: First, that the judgment of a court of concurrent jurisdiction direcdy upon the point, is as a plea, a bar, or as evidence conclusive between the same parties, upon the same matter direcdy in question in another court; secondly, that the judgment of the court of exclusive jurisdiction direcdy upon the point, is in like manner conclusive upon the same matter, between the same parties, coming incidentally in question in another court, for a different purpose. But neither the judgment of a concurrent nor exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred from argument.
Thus, the doctrine of res judicata was coexistent in the common law along with the doctrines of former acquittal and former conviction. However, the doctrines of res judicata and former acquittal and convictions were distinct. It is important that the distinctions be maintained.
It is important to understand the law in Arkansas on res judicata in a criminal case as it existed on April 6, 1970. On that date, we had common law regarding res judicata that was applicable, and on that date federal law on “collateral estoppel” was made applicable to the States by Ashe, supra.
Ashe concerned the robbery of the participants in a poker game. It was believed that there were four robbers. Ashe was first tried for the robbery of poker player Donald Knight. The trial court instructed the jury that, if Ashe was found to be one of the participants in the robbery, the theft of any money from Knight would sustain a conviction. Ashe was acquitted. The State then charged, tried, and convicted Ashe of robbery based on the robbery of another poker player. The United States Supreme Court concluded that “the single rationally conceivable issue in dispute before the jury was whether the petitioner (Ashe) had been one of the robbers. And the jury by its verdict found that he had not.” Ashe, 397 U.S. at 445. The State of Missouri was precluded from trying Ashe in a subsequent trial for robbery of any of the other victims because:
[o]nce a jury had determined upon conflicting testimony that there was reasonable doubt that petitioner was one of the robbers, the State could not present the same or different identification evidence on a second prosecution for the robbery of Knight in the hope that a different jury might find that evidence more convincing. The situation is constitutionally no different here, even though the second trial related to another victim of the same robbery.
Ashe, 397 U.S. at 446. Based on collateral estoppel applied to the States through the Fifth Amendment, the court found that the subsequent prosecution was barred.
In Ashe, the court considered the issue of whether “collateral estoppel” or issue-preclusion, as it had been developed under federal common law, was “embodied in the Fifth Amendment guarantee against double jeopardy.” Ashe, 397 U.S. at 445. The court concluded:
We do not hesitate to hold that it is. For whatever else that constitutional guarantee may embrace, (citation omitted) it surely protects a man who has been acquitted from having to ‘ran the gauntlet’ a second time. (Citation omitted).
Id. This merger by the United States Supreme Court of federal law on the distinct and unrelated doctrines of res judicata and double jeopardy has been characterized as a miraculous transformation. Butler v. State, 91 Md. App. 515, 526, 605 A.2d 186 (1991). The Maryland Court of Appeals noted that before Ashe the court in Hoag v. New Jersey, 356 U.S. 464 (1958), noted at the outset of the opinion that double jeopardy did not apply to the case and then in discussing “collateral estoppel” stated:
Despite its wide employment we entertain grave doubts whether collateral estoppel can be regarded as a constitutional requirement.
Hoag, 356 U.S. at 471; Butler, 91 Md. App. at 527. We note this not because we doubt the binding authority of Ashe on this court to apply the federally developed doctrine of “collateral estoppel” in criminal cases, but rather to point out as the Maryland Court of Appeals so apdy stated:
The point to be made in recounting this constitutional revisionism is that when two or more distinct bodies of doctrine — stemming from different origins, serving different albeit related purposes, and implemented by different rules — are generically labeled with the same “umbrella term,” there arises the recurring semantic danger that a statement in the case law, correct in its original context of one variety of double jeopardy law, may be randomly misapplied to some other variety where it does nothing but generate confusion. This is why any discussion of collateral estoppel should meticulously confine itself to nothing but collateral estoppel cases.
Butler, 91 Md. App. at 530-31. The danger of confusion created by the merger of federal law on res judicata and double jeopardy is real. The case of Brown v. Ohio, 432 U.S. 161 (1977), followed Ashe. In Brown, the court noted that in Ashe, if all four alleged robberies had been tried in the same proceeding, strict application of the Blockhurger test of double jeopardy would have allowed multiple prosecutions because each robbery was a separate offense. Brown, 432 U.S. at 166, fn. 6. However, with regard to “collateral estoppel” the Court in Brown did not alter the holding in Ashe. Because Ashe was not tried on all four robberies in the same proceeding, “collateral estoppel” precluded asking another jury to decide if he was present at the robbery. Res judicata does not apply where the issue is inconsistent verdicts within the same proceeding. Bridges v. State, 327 Ark. 392, 938 S.W.2d 561 (1997); Jordan v. State, 323 Ark. 628, 631, 917 S.W.2d 164 (1996); McVay v. State, 312 Ark. 73, 847 S.W.2d 28 (1993).
In March 1970, less than one month before Ashe was decided, this court handed down Turner v. State, 248 Ark. 367, 371, 452 S.W.2d 317, 319 (1970){plurality opinion) (Turner I), where we stated that “[t]here are no criminal cases in this state relative to the application of res judicata, but we have several civil cases, and the principle is, of course, the same. The doctrine of res judicata, is discussed in several Arkansas cases.” Thus, one month before Ashe was handed down by the United States Supreme Court, we noted that our own common law on res judicata applied to criminal cases. Previously in State v. Gill, 33 Ark. 129, 134 (1878), this court noted the plea of res judicata in a criminal case, but rejected it because the matter had not been tried on the merits.
In Turner, Turner was tried for murder and acquitted. The State then charged, tried, and convicted Turner for robbery based on the same facts. Turner asserted res judicata in a motion to dismiss. The circuit court denied the motion and an appeal was taken. In Turner I, we held that res judicata did not apply because the only question determined by the jury was whether Turner committed murder, not whether he committed robbery on that occasion, as alleged in the second criminal action. Turner was charged both with a murder committed in the course of a robbery and premeditated murder with a gun. He was acquitted. However, according to Justice Fogleman’s concurring opinion, the record did not contain either the jury verdict form or indicate what evidence was before the jury. Therefore, it was possible that the jury did not decide the issue of robbery. Turner brought another motion to dismiss, but this time he included the record and argued that Ashe required that he prevail. In Turner v. State, 251 Ark. 499, 473 S.W.2d 904 (1971) (Turner II), this court acknowledged Ashe, but held that the law of the case precluded the appeal because “collateral estoppel” was considered in the first appeal. However, this decision was reversed in Turner v. Arkansas, 407 U.S. 366 (1972); the United States Supreme Court noted that, had the jury found Turner present at the robbery, a decision of guilt on the murder in the first trial would have been complusory under Arkansas accessory law. Based on this, the court found that the jury in the first trial decided that Turner was not present and that under collateral estoppel, this finding foreclosed the charge of robbery that followed.
In response to Ashe, Act 280 of 1975 was passed. See Journey v. State, 261 Ark. 259, 547 S.W.2d 433 (1977). Section 5-1-113(2) of the Arkansas Code Annotated provides:
A former prosecution is an affirmative defense to a subsequent prosecution for a different offense under the following circumstances:
The former prosecution was terminated by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed, or vacated and which necessarily required a determination inconsistent with a fact which must be established for conviction of the second offense.
This section is intended to protect the notions of fairness and finality that underlie the decision of Ashe, supra. Journey, supra. However, as already noted, Arkansas common law on res judicata was applicable in criminal cases even before Ashe was decided. It remains applicable.
Mason asserts that “[u]nder the doctrine of collateral estoppel, Mr. Mason’s prior acquittal on the charge of possession of a firearm by certain persons prohibits the State from prosecution of Mr. Mason on the charge of battery in the first degree by means of a firearm.” The State argues that because the “issues in the prosecution of two offenses were not the same . . . the doctrine of collateral estoppel does not apply.”
Since the decision in Ashe, both the United States Supreme Court and this court have handed down decisions on res judicata in criminal cases. In Schiro v. Farley, 510 U.S. 222 (1994), the Court stated that the person who seeks the protection of issue preclusion bears the burden of showing that “issue of ultimate fact has once been determined in his favor.” Schiro, 510 U.S. at 232 (quoting Ashe, supra). The Court then went on to analyze the case under Ashe, stating that it must be determined “whether a rational jury could have grounded its verdict upon an issue other than Schiro’s intent to kill.” Id. Further, the court stated that “to do so, we ‘examine the record of a prior proceeding taking into account the pleadings, evidence, charge, and other relevant matter. . . ” Schiro, 510 U.S. at 233 (citing Ashe, supra). See also Dowling v. United States, 493 U.S. 342 (1990).
Development of res judicata by the federal courts in criminal cases and made applicable to the states by Ashe is similar to the law on res judicata as developed in Arkansas and seeks to protect the distinction between res judicata and double jeopardy. In Frank v. Mangum, 237 U.S. 309, 333-34 (1915), the United States Supreme Court stated:
It is a fundamental principle of jurisprudence, arising from the very nature of courts of justice and the objects for which they are established, that a question of fact or of law distincdy put in issue and directly determined by a court of competent jurisdiction cannot afterwards be disputed between the same parties. . . The principle is as applicable to the decisions of criminal courts as to those of civil jurisdiction.
In Frank, the Court cited to Southern Pacific Railroad v. U.S., 168 U.S. 1, 48-9 (1896), wherein the Court stated:
A right, question or fact distinctly put in issue and direcdy determined by a court of competent jurisdiction, as a ground of recovery, can not be disputed in a subsequent suit between the same parties or their privies; and even if the second suit is for a different cause of action, the right, question or fact, once so determined, must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified.
Southern Pacific Railroad, supra, has been cited by this court in the development of our own law on res judicata. See Pacific Mut. Life Ins. Co. v. Butler, 192 Ark. 614, 618, 93 S.W.2d 329 (1936); The Equitable Life Assurance Soc’y v. Bagley, 192 Ark. 749, 751, 94 S.W.2d 722 (1936).
In United States v. Oppenheimer, 242 U.S. 85, 88 (1916), in discussing that res judicata applied in criminal cases, the Court stated:
The safeguard provided by the Constitution against the gravest abuses has tended to give the impression that when it did not apply in terms, there was no other principle that could. But the Fifth Amendment was not intended to do away with what in the civil law is a fundamental principle of justice (citation omitted) in order, when a man once has been acquitted on the merits to enable the government to prosecute him a second time.
In Collins v. Loisel, 262 U.S. 618 (1923), the Court stated that “the 5th Amendment, in providing against double jeopardy, was not intended to supplant the fundamental principle oires judicata in criminal cases.” In United States v. Adams, 281 U.S. 269 (1930), the Court stated that although a separate offense was alleged, a former judgment established that, at the time the appellant made the complained of entries in the bank books, there was no intent to defraud. Citing Oppenheimer, supra, the Court found that the judgment was conclusive on this issue even though this was a different offense. In Sealfon v. United States, 332 U.S. 575, 578 (1948), the Court stated that it had long been recognized that the commission of the substantive offense and a conspiracy to commit the same offense are separate and distinct offenses, and that “res judicata may be a defense in a second prosecution,” noting that the “doctrine applies to criminal as well as civil proceedings . . . and operates to conclude those matters in issue which the verdict determined though the offenses be different.” Thus, long before Ashe, supra, the United States Supreme Court recognized the importance of res judicata in criminal cases, which should be noted in light of the confusion that has arisen since Ashe was decided.
The State cites Sherman v. State, 326 Ark. 153, 931 S.W.2d 417 (1996), stating; “However, the issues in the prosecution of the two offenses were not the same, and the doctrine of collateral estoppel does not apply.” Thus, the State wished to impose the double-jeopardy element of same offense on res judicata. Sherman was driving a stolen truck when he attempted to outrun the police, and, in the process, drove through a police roadblock, causing damages to cars, as well as injuries to two persons. He was first charged with four misdemeanors: DWI, failure to yield to an emergency vehicle, driving without a license, and reckless driving. He pled guilty. He was then charged with four felonies: fleeing, first-degree assault, and two counts of first-degree battery. He pled double jeopardy, res judicata, and collateral estoppel based on a guilty plea in municipal court. This court analyzed Sherman’s double-jeopardy claim under the Blockburger test to determine whether the offenses were the same. The conclusion was that they were not the same offenses. With respect to the claim of “collateral estoppel,” this court found that it was not applicable because a factual issue essential to the first verdict was not an essential element of the second charge. Sherman, 326 Ark. at 166.
In criminal cases when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Thompson, supra; Hill v. State, 331 Ark. 312, 962 S.W.2d 762 (1998). The person who seeks the benefit of issue-preclusion bears the burden of showing that: (1) the issue sought to be precluded is the same as that involved in the prior litigation; (2) the issue was actually litigated; (3) the issue was determined by a final and valid judgment; and (4) the determination was essential to the judgment. In re: Estate of Goston v. Ford Motor Co., 320 Ark. 699, 898 S.W.2d 471 (1995); Crockett & Brown, P.A. v. Wilson, 314 Ark. 578, 864 S.W.2d 244 (1993).
Because Mason was accused of being a felon in possession of a firearm in the first trial, the elements in that case were proof that he was a felon and that he either had actual or constructive possession of a firearm. See Banks v. State, 315 Ark. 666, 869 S.W.2d 700 (1994). In that first trial, Jackie testified that, “Mason pulled up a handgun.” He further testified that Mason “held it in his hand, and he shot me with it.” He also testified that Mason had the pistol with him outside, and that he hid it behind his back at one point. He also testified that he saw Mason running down the street with the pistol in his hand. Latonia testified that she saw Mason with the pistol in his hand, and that she saw Mason shoot Jackie. Jackie was treated at the hospital for gunshot wounds. The jury was instructed that Mason was charged with the offense of possession of a firearm and that, to sustain that conviction, the State had to prove that Mason was convicted of a felony and that he possessed or owned a firearm. AMI Crim. 7302. The jury found Mason not guilty of “possession of a firearm by certain persons.” On November 7, 2002, Mason filed a Motion to Bar Prosecution, arguing that, pursuant to Ark. Code Ann. § 5-1-113(2), and collateral estoppel, his acquittal on the former prosecution for possession of a firearm' barred prosecution for the remaining charges, including battery by means of a firearm. The motion was denied on November 12, 2002. The circuit applied the “Block-burger test” and denied the motion. The State then tried Mason on Counts I, II and IV, which included battery in the first degree by means of a firearm. The testimony again was that Mason assaulted the victims with a firearm. The jury was instructed that to sustain the charge, the State had to prove that Mason caused physical injury by means of a firearm.
The case of McVay, supra, is helpful. McVay was tried on DWI and negligent homicide caused by intoxication. The jury found McVay guilty' of negligent homicide but not guilty of DWI. McVay argued collateral estoppel and this court correctly stated:
McVay is correct to this extent: if the state proceeded against him first on DWI and he were acquitted, the state would be collaterally estopped from proceeding against him in a second trial for negligent homicide. See United States v. Greene, 497 F.2d 1068 (7th Cir. 1974); Ashe v. Swenson, 397 U.S. 436 (1970). We disagree, however, with the corollary — that the same result applies when the two offenses are tried simultaneously.
McVay, 312 Ark. at 76, 347 S.W.2d at 30.
In the present case, the State moved for a continuance to obtain documentation of prior' criminal acts by Mason. That meant that the felon in possession of a firearm case was tried first. As a consequence of the acquittal in that case, Mason was able to show at the trial on Counts I, II, and IV that the issue ofpossession in the second trial was the same issue as that involved in the prior trial, that the issue was actually litigated, and that it was determined in his favor by a final and valid judgment that he did not possess a firearm at the time of the alleged offenses committed with a firearm. The issue preclusion facet of res judicata and Ark. Code Ann. § 5-1-113(2) (Repl 1997) precluded the State at the second trial from presenting evidence that Mason possessed a firearm at the time of the crime alleged. This case is affirmed as to the terroristic threatening conviction and reversed and remanded on the first-degree battery by means of a firearm conviction.
In Cothren v. State, 344 Ark. 697, 705, 42 S.W.3d 543 (2001), this court stated:
In Blockburger v. United States, 284 U.S. 299 (1932), the U.S. Supreme Court held that the double jeopardy bar applies in the multiple punishment context where the two offenses for which the defendant is punished cannot survive the “same-elements” test. The same-elements test, commonly referred to as the “Blockburger” test, is as follows:
[Wjhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not ____ [A] single act may be an offense against two statutes, and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant iom prosecution and punishment under the other.
Blockburger v. United States, 284 U.S. at 304.
This court and other courts often use the term “estoppel” rather than “issue preclusion” in discussion of the doctrine of res judicata. This can be confusing, as noted in 50 C.J.S. Judgment §700 (1997). The first inclusion of the term “collateral estoppel” in an opinion by this court discussing res judicata is Narsi v. Narsi, 233 Ark. 525, 345 S.W.2d 620 (1961), where the term appears in a quote from 27 C.J.S. Divorce § 174 (1959). The term next appears in Fuller v. Fuller, 240 Ark. 475, 400 S.W.2d 283 (1966), in a quote from Restatement of Judgments § 68 (1942). The term “collateral estoppel” first appears in the U.S. Reports in Mercoid Corp. v. Mid-Continent Co., 320 U.S.661 (1944), where the Court cites Scott, Collateral Estoppel by Judgment, 56 Harv. L.R. 1 (1942). Estoppel is an equitable doctrine based in reliance on another party’s actions or representations. See, e.g., In Foote’s Dixie Dandy, Inc. v. McHenry, 270 Ark. 816, 607 S.W.2d 323 (1980). Issue-preclusion does not arise from equity. It is a plea in bar, which is an old term for a legal plea that the action is barred. See, e.g., Flanagan v. Drainage Dist. No. 17, 176 Ark. 31, 32, 2 S.W.2d 70 (1928). The issue of a bar might be thought of as collateral in the sense that suit is barred based on a reason unrelated to the issues raised in the complaint.
See, e.g., Fisher v. Jones, 311 Ark. 450, 456, 844 S.W.2d 954 (1993); Smith v. Roane, 284 Ark. 568, 569, 683 S.W.2d 935 (1985). In Toran v. Provident Life & Accident Ins. Co., 297 Ark. 415, 419, 764 S.W.2d 40 (1989), we went so far as to state that “res judicata and collateral estoppel are separate concepts.”
A special plea is a plea in bar as distinguished from a plea on the general issue, or in other words as distinguished from a plea in direct response to the allegations of the action. It is an affirmative plea barring the action. See Black's Law Dictionary 1131 (4th ed. 1951).
A plea in bar is a plea that defeats an action absolutely and entirely. See Black’s Law Didionary 1130 (4th ed. 1951).
Sometimes in the cases, the plea of auterfoits is spelled auterfois or autrefois.
The pleas long predated Blackstone in the common law of England. The plea of auterfoits convict was noted in Bradley v. Banks, 79 Eng. Rep. 243 (K.B. 1611).
Rex v. The Duchess of Kingston, 20 Howell’s State Trials 538 (House of Lords, 1776) was most recently cited in Newman v. State, 284 Md. 285, 863 A.2d 321 (2004), and has been cited by this court on the issue of res judicata in Falls v. Wright, 55 Ark. 562, 18 S.W. 1044 (1892); Peay v.Duncan, 20 Ark. 85 (1859); Shall v. Biscoe, 18 Ark. 142 (1856); State v. Williams, 17 Ark. 371 (1856) (civil action on debt); Trammell v. Thurmond, 17 Ark. 203 (1856); and in, Borden v. State, 11 Ark. 519 (1851) (civil action on debt).
This danger has been realized in cases such as United States v. Kills Plenty, 466 F.2d 240 (8th Cir. 1972), where the Eighth Circuit Court mistakenly included an element of double jeopardy in a case on collateral estoppel and stated:
The rule of collateral estoppel is ‘simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.’ Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). Thus for collateral estoppel to bar a criminal prosecution, two factors must be present: (1) both adjudicatory entities must be arms of the same sovereign and (2) a factual issue essential to the first verdict must be an essential element of the second charge. In order to prevail in the present case, appellant must persuade the court that (1) the tribal courts and federal district courts are arms of the same sovereign and (2) the question of intoxication, which clearly was resolved in the first trial, is an essential element ofinvoluntary manslaughter. This he has faded to do.
Kills Plenty, 466 F.2d at 243. The analysis is internally inconsistent. The court cites Ashe for the proposition that “collateral estoppel is ‘simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit,’ ” and then inexplicably adds a requirement that “both adjudicatory entities must be arms of the same sovereign.” That law comes out of double jeopardy.
Diane Crutchfield was found murdered a few days after the incidents involved in this case. Therefore, she was not available to testify at either trial, and Mason’s theory in the first trial was that Crutchfield had fired the shots. | [
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Robert L. Brown, Justice.
The petitioner, Ouachita Railroad, Inc., petitions this court for a writ of prohibition against the respondent, the Circuit Court of Union County, Second Division. Ouachita Railroad seeks the writ on the basis that the circuit court is wholly without jurisdiction to entertain a counterclaim against it for abandonment and adverse possession in its suit for ejectment against Donna and Steve Harbour (the Harbours). It asserts that the Harbours’ counterclaim is within the exclusive jurisdiction of a federal board, the Surface Transportation Board (STB). The Harbours counterpetition for a writ of prohibition on grounds that Ouachita Railroad’s ejectment action also falls within the sole jurisdiction of the STB. We grant Ouachita Railroad’s petition for writ of prohibition and deny the Harbours’ counterpetition.
On February 24, 1999, Ouachita Railroad filed it complaint for ejectment against the Harbours in circuit court. In its complaint, the railroad stated that it had obtained a parcel of land through a series of deeds from Chicago, Rock Island and Pacific Railroad Co., and that it had been paying, and was continuing to pay, property taxes on the land. The property at issue, as identified in the complaint, consists of a strip of land that is approximately fifty feet wide and runs from Main Street in El Dorado to a point approximately five-hundred feet north of Main Street. The complaint alleged that the Harbours had wrongfully taken possession of the land and had removed the railroad’s tracks from the land, thereby damaging Ouachita Railroad by depriving it of its opportunity to use the property. The complaint prayed for the Harbours to be ejected and for damages, as well as for a writ of possession.
The Harbours answered Ouachita Railroad’s complaint and counterclaimed, asserting adverse possession and abandonment against the railroad. They claimed that the railroad’s right-of-way had been lawfully abandoned without any substantial possession by it or its predecessors in title for a period of more than twenty years. In addition, they claimed that title should be quieted in them due to their open, notorious, and continuous possession of the tract.
Ouachita Railroad answered the counterclaim and denied the allegations. It further asserted that the counterclaim failed to set forth facts upon which relief could be granted. The railroad also alleged that the circuit court had no jurisdiction to hear the Harbours’ equitable quiet-title claim for abandonment and adverse possession, and that, therefore, the claim should be dismissed or transferred to the chancery court.
Ouachita Railroad then moved for summary judgment. It its motion, it asserted that the STB had exclusive jurisdiction over the abandonment or discontinuation of the use of the right-of-way, and that the STB’s authority to regulate the matter preempted all state law relating to it. It claimed that because there was no genuine issue as to any material fact, it was entitled to judgment as a matter of law.
On March 30, 2001, the chancery court issued a letter opinion in the matter. In it, the court stated that the authorities cited by Ouachita Railroad supported the railroad’s preemption argument and that “it is the conclusion of this Court that whether this property has been abandoned by plaintiff must be resolved by the Surface Transportation Board.” The court then ruled that because the filing fee for any petition before the STB was $14,500, it would be inequitable to require the Harbours to spend more than the value of the land at issue to find out whether the land had been abandoned by the railroad. The court concluded:
... Therefore, it is the conclusion of this Court that the Motion for Summary Judgment by plaintiff should be denied but a finding by this Court made that the exclusive source of determining whether the land has been abandoned is the Surface Transportation Board. An Order should be entered requesting that governmental agency to address the abandonment issue and that the filing fee be waived.
On April 12, 2001, the court entered its order in which it agreed “that the issue of whether the Plaintiff has abandoned the property in question in this lawsuit is an issue which must be resolved by the Surface Transportation Board.” The court stayed the matter and referred the abandonment issue to the STB for resolution. It further directed counsel for the Harbours to file the necessary request with the STB to bring the abandonment issue before it and directed counsel to request the STB to waive all filing fees in the matter because the matter was being referred by a state governmental entity in accord with 49 C.F.R. § 1002.2(e)(1). The court retained jurisdiction to address the state law claims after the STB made its final determination on whether Ouachita Railroad had abandoned the property.
On April 25, 2002, Ouachita Railroad filed a renewed and supplemental motion for summary judgment, in which it claimed that the Harbours made the request as directed by the court, but that the STB denied the Harbours’ request to waive the filing fee. The railroad moved that since the court had already determined that the STB had exclusive jurisdiction over the Harbours’ counterclaim, it was appropriate for the court now to grant its motion for summary judgment.
On May 9, 2003, the circuit court issued a letter opinion. In this opinion, the circuit court wrote that a hearing had been held on the railroad’s renewed and supplemental motion for summary judgment. The court found:
It is the conclusion of this Court that, although the issue of abandonment is not within the jurisdiction of this Court, the equitable defenses raised by defendants regarding the action in ejectment are within the jurisdiction of this Court. Therefore, the motion for summary judgment by plaintiff should be denied.
A decree memorializing the circuit court’s letter opinion was entered subsequendy.
On June 30, 2004, Ouachita Railroad petitioned this court for a writ of prohibition on grounds that the circuit court was wholly without subject-matter jurisdiction to hear the Harbours’ counterclaim of abandonment or adverse possession. The Harbours responded that the circuit court had “maintained that certain equitable and affirmative defenses remained available as pertains to possession and usage of any such right-of-way.”
Ouachita Railroad first contends that it is entitled to a writ of prohibition against the circuit court, because the STB has exclusive jurisdiction over the Harbours’ counterclaim of abandonment and adverse possession. It contends that 49 U.S.C. § 10501(b) grants the STB exclusive jurisdiction over the abandonment and discontinuance of all rail lines where Ouachita Railroad has record title. It claims that the STB’s jurisdiction preempts any state court jurisdiction to adjudicate an action involving the cessation of services on a rail line, and it submits that under the ICC Termination Act of 1995, the STB’s determination of abandonment is plenary, pervasive, and exclusive of state law, preempting all state laws relating to the subject matter. It further asserts that state law claims can only be brought after an STB-authorized abandonment, and as such, the circuit court is precluded by federal law from hearing or deciding the Harbours’ abandonment claim. Finally, it maintains that the Harbours’ quiet-title action is likewise preempted, because any determination by the circuit court that the Harbours had acquired title by adverse possession would effectively equate to a permanent and total cessation of railroad service over the right-of-way, and, again, only the STB has the authority to discontinue rail service.
The Harbours first respond that the petition for writ of prohibition is moot in that the circuit court has acknowledged the STB’s exclusive jurisdiction over abandonment, and any appellate-court finding in that regard would have no practical legal effect upon the existing legal controversy. The Harbours further urge that there are proper appellate remedies remaining available to the railroad after a full adjudication of the issues on the merits, and, accordingly, prohibition should not be substituted for the normal remedy of appeal. Finally, the Harbours urge that their counter-petition for a writ of prohibition should be granted regarding Ouachita Railroad’s ejectment complaint. They contend that should the STB have exclusive jurisdiction over their claims, then the circuit court should likewise be barred from reviewing or considering those issues set forth in the railroad’s complaint.
This court has previously set forth the requirements for obtaining a writ of prohibition:
A writ of prohibition is an extraordinary writ. McGlothlin v. Kemp, 314 Ark. 495, 863 S.W.2d 313 (1993). We have stated that it is only appropriate when the lower court is wholly without jurisdiction. Id. Jurisdiction is the power or authority of the court to act. Mark Twain Life Ins. Corp. v. Cory, 283 Ark. 55, 670 S.W.2d 809 (1984). The jurisdiction of the circuit court to hear civil cases absent a provision for exclusive jurisdiction of a particular matter in another venue is well settled. Commission of Judicial Discipline and Disability v. Digby, 303 Ark. 24, 792 S.W.2d 594 (1990). We have consistently denied writs of prohibition where the lower court acted within its jurisdiction. See, e.g., Arkansas Highway Comm’n v. Munson, 295 Ark. 447, 749 S.W.2d 317 (1988) (chancery court has power to enjoin the enforcement of a void order); Commission of Judicial Discipline and Disability v. Digby, supra (circuit court has authority to entertain a declaratory judgment action but not action for costs and expenses).
West Memphis Sch. Dist. No. 4 v. Circuit Court of Crittenden County, 316 Ark. 290, 293, 871 S.W.2d 368, 370 (1994). The writ is appropriate only when there is no other remedy, such as an appeal, available. See Manila Sch. Dist. No. 15 v. Wagner, 357 Ark. 20, 159 S.W.3d 285 (2004). Prohibition is a proper remedy when the jurisdiction of the trial court depends upon a legal matter rather than a factual question. See id.
The Harbours’ first answer to Ouachita Railroad’s petition is that because the circuit court acknowledged that the STB had exclusive jurisdiction over the counterclaim, and because the railroad has the option of appeal after a determination on the merits, the instant petition is moot. They are mistaken.
While the circuit court did find that the STB had jurisdiction over the abandonment counterclaim, the circuit court denied the railroad’s motion for summary judgment on the counterclaim and retained jurisdiction over it. Specifically, it retained jurisdiction over “the equitable defenses raised by defendants[.]” As stated above, a writ of prohibition is appropriate where a circuit court is wholly without jurisdiction. Thus, if determined by this court that the STB does have exclusive jurisdiction over the counterclaim and “the equitable defenses,” the circuit court would be wholly without jurisdiction, and the railroad would be entitled to its writ.
This court has previously found that a writ of prohibition is a proper remedy for lack of subject-matter jurisdiction in the trial court even when a petitioner is not entitled to an appeal from a denial of a motion for summary judgment. See Ramirez v. White County Circuit Court, 343 Ark. 372, 377, 38 S.W.3d 298, 301 (2001) (“So, if there is no jurisdiction, the only way petitioners can obtain review by this court is by way of a petition for a writ of prohibition. Therefore, a petition for writ of prohibition is a proper method to obtain review of jurisdiction by this court.”). In the case before us, the instant petition follows the denial of a motion for summary judgment but raises the issue of lack of subject-matter jurisdiction in the circuit court. Accordingly, we will hear it. See, e.g., St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, Western Div., 348 Ark. 197, 73 3d 584 (2002).
In English v. General Elec. Co., 496 U.S. 72 (1990), the United States Supreme Court set forth three scenarios in which federal preemption may occur: (1) where Congress has made its intent known explicitly through statutory language; (2) where state law regulates conduct in a field that Congress intended the Federal Government to occupy exclusively; or (3) where state law actually conflicts with federal law. At issue in the instant case is 49 U.S.C. § 10501 (2000), which sets forth the general jurisdiction of the Surface Transportation Board. Subsection (b) of that section provides in pertinent part:
(b) The jurisdiction of the Board over —
(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and
(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State,
is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.
49 U.S.C. § 10501(b) (2000).
The question before this court is whether the Harbours’ counterclaim against the railroad for abandonment and adverse possession of the railroad’s right-of-way is exclusively within the jurisdiction of the STB. We conclude that it is. Section 10501(b) clearly provides that the STB’s jurisdiction over the abandonment of tracks is exclusive and preempts any remedies available under state law. This court has previously recognized the broad language of § 10501(b), as it related to the discontinuation of railroad agency stations and its preemptive effect. See 25 Residents v. Arkansas Highway & Transp. Comm’n, 330 Ark. 396, 401, 954 S.W.2d 242, 244 (1997) (“Given the broad language of the act itself, its statutory framework, and considering the recent decisions interpreting the act, we believe it is clear that Congress intended to preempt the states’ authority to engage in economic regulation of rail carriers.”).
The Unites States Supreme Court has noted the plenary preemptive authority of the STB’s predecessor, the Interstate Commerce Commission (ICC) in Chicago & North Western Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311 (1981):
The Interstate Commerce Commission has been endowed by Congress with broad power to regulate a carrier’s permanent or temporary cessation of service over lines used for interstate commerce. ... In addition, and most relevant here, the Act endows the Commission with broad authority over abandonments, or permanent cessations of service.
. . . Consequently, we have in the past concluded that the authority of the Commission to regulate abandonments is exclusive. The Commission’s authority over abandonments is also plenary.
In sum, the construction of the applicable federal law is straightforward and unambiguous. Congress granted to the Commission plenary authority to regulate, in the interest of interstate commerce, rah carriers’ cessations of service on their lines. And at least as to abandonments, this authority is exclusive.
450 U.S. at 319-23 (internal citations omitted). See also Cedarapids, Inc. v. Chicago, Central & Pacific R.R. Co., 265 F. Supp. 2d 1005 (N.D. Iowa 2003) (holding that to the extent that Cedarapids’ state-law claim sought to force CC&P to abandon the track in question, such claims were preempted by the Interstate Commerce Commission Termination Act); City of Seattle v. Burlington Northern R.R. Co., 105 Wash. App. 832, 836, 22 P.3d 260, 262 (2001) (stating that language of 49 U.S.C. § 10501 is “clear, broad, and unqualified” and “grants the STB jurisdiction over the listed activities”); Trustees of the Diocese of Vermont v. State, 145 Vt. 510, 496 A.2d 151 (1985) (holding that where no abandonment proceedings before the ICC had been commenced, nor any ICC authorization for the Vermont Railway to discontinue service, a declaratory-judgment action in state court that easement granted for railroad purposes had been abandoned interfered with ICC’s power to determine abandonment).
While the Chicago & North Western Transp. Co. decision dealt with the ICC, 49 U.S.C. §§ 701-702 (2000) created the current STB and enabled it to perform all functions that were the functions of the ICC prior to the enactment of the ICC Termination Act of 1995. See 49 U.S.C. §§ 701-702 (2000). Accordingly, just as the ICC had exclusive jurisdiction over a railroad’s abandonment of its lines, so does the STB since the passage of the ICC Termination Act of 1995. See Howard v. Surface Transp. Bd., 389 F.3d 259 (1st Cir. 2004) (stating that generally, the STB’s authority over abandonment of rail lines is exclusive and plenary, citing Chicago & North Western Transp. Co. v. Kalo Brick & Tile Co., supra).
With respect to the Harbours’ counterclaim for adverse possession of the property, and any “equitable defenses” that seek to establish any right to usage of the land by the Harbours, we conclude that these matters too would be precluded under 49 U.S.C. § 10501. As already noted, the ICC’s, and now STB’s, jurisdiction over the “construction, acquisition, operation, abandonment, or discontinuance of. . . tracks” is exclusive. 49 U.S.C. § 10501(b)(2) (2000). Were the circuit court to quiet title over the land in favor of the Harbours based on their counterclaim of adverse possession or to acknowledge any right to the land by the Harbours, this would necessarily result in the acquisition of the right-of-way by the Harbours and in the discontinuation of the use of the same by the railroad. Such a determination clearly falls within the exclusive jurisdiction of the STB, as demonstrated by the clear language of the statute as well as the case law cited above.
One appellate court has even acknowledged that “a long-standing de facto abandonment is insufficient to defeat the jurisdiction of the STB to determine whether such an abandonment is within the public convenience and necessity.” Eldridge v. City of Greenwood, 331 S.C. 398, 408, 503 S.E.2d 191, 196 (1998). Because any determination by the circuit court on the matter of title or any right to the land would interfere with the STB’s jurisdiction as provided for in the statute, we hold that the circuit court is wholly without jurisdiction to determine the abandonment and adverse possession claims but also any equitable defenses asserted by the Harbours that seek to bestow upon them any right to the use of the land. It is the STB that has exclusive jurisdiction over such matters. Accordingly, the circuit court is wholly without jurisdiction to make any determination regarding these matters, and the writ of prohibition should issue.
The Harbours also counterpetition for a writ of prohibition to prohibit the circuit court from hearing the railroad’s complaint for ejectment, but they have failed to cite this court to any authority for such a proposition other than 49 U.S.C. § 10501 (b). This court has been resolute in holding that it will not consider an issue raised which is not supported by convincing argument or citation to authority. See, e.g., Whitley v. Cranford, 354 Ark. 253, 119 S.W.3d 28 (2003); Utley v. City of Dover, 352 Ark. 212, 101 S.W.3d 191 (2003). In addition, we note that § 10501(b) does not list ejectment as a matter that is within the jurisdiction of the STB. Because no abandonment or cessation of use of the land by the railroad has been decided by the STB, title to the land remains in Ouachita Railroad, and it may proceed with its claim for ejectment in state court.
Ouachita Railroad’s petition for a writ of prohibition is granted. The counterpetition for a writ of prohibition is denied.
Ouachita’s answer to the Harbours’ counterclaim was filed in 1999 prior to the effective date of Amendment 80 to the Arkansas Constitution, which merged courts of law and equity.
The motion further states that the matter was transferred to chancery court because of the equitable nature of the Harbours’ counterclaim.
Section 6 of Amendment 80 provides that all trial courts will be circuit courts. The Amendment was effective July 1,2001. ■
The STB was established in 1996 and replaced the ICC. See 49 U.S.C. §§ 701-702 (2000). | [
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Annabelle Clinton Imber, Justice.
This case was commenced when the appellee, General Parts, Inc. (“GPI”), filed a complaint for replevin against the appellants, Carquest of Arkansas, Inc. and Sam R. Clark, Jr. (“Carquest”) on December 6, 1999. According to the complaint, GPI is “a wholesale distributor of auto parts, selling, inter alia, to various CARQUEST dealers.” GPI’s complaint alleges that GPI regularly sold automotive and tractor parts to Carquest and that, during the course of this relationship, Carquest executed a security agreement in favor of GPI granting GPI a security interest in “its inventory, proceeds from the sale of that inventory, accounts receivable, proceeds from accounts receivable, equipment and proceeds from the equipment.” GPI maintains that Carquest was disposing of the inventory and was in default under the terms of the security agreement. The complaint further states:
9. Up until about November 1,1999, [Carquest has] regularly paid the invoices of [GPI]. However, [Carquest] tendered a payment in November to [GPI] in the sum of $23,000.00. That check was returned to [GPI] with a PAYMENT STOPPED notation, making it clear that [Carquest] intended to obtain product by trick and device without paying for it. A copy of that check is attached hereto as Exhibit D. [Carquest] is now indebted to [GPI] in the total sum of $50,923.78 as and for products sold and delivered to [Carquest] and is delinquent in the payment of the indebtedness to [GPI].
GPI’s complaint requests that the court give GPI possession of the collateral, issue a temporary restraining order and preliminary injunction to prevent Carquest from disposing of the property covered by the security agreement, and award a monetary judgment against Carquest.
On January 25, 2000, Carquest filed an answer and a counterclaim, alleging wrongful termination of contract, breach of the implied duty of good faith and fair dealing, and violation of the Arkansas Franchise Practices Act, Ark. Code Ann. §§ 4-72-201 et seq. (Supp. 2003). To support these claims, Carquest states that the Carquest distributorship constituted a “franchise” and that GPI “arbitrarily and wrongfully terminated the parties’ contractual arrangements which has resulted in the destruction of [Carquest’s] business and the loss of the considerable investment that [Carquest] made in building the distributorship.” The counterclaim further alleges:
9. With respect to the events which led up to the termination of Defendants’ distributorship, in the summer of1999, Carquest was given the option by GPI to purchase a new Polaris computer from GPI for the amount of $24,000.00 which would enable Carquest to utilize state of the art computer equipment, provide enhancements that its existing computer system did not have in the form of a billing schedule used in conjunction with a velocity pricing program, and which would be a depreciable asset of Carquest. GPI represented to [Carquest] that with this new computer system, and the new billing schedule and velocity programs, the computer would “pay for itself.” Based upon the representations of GPI, Carquest purchased the new computer from a company, CCI/TRIAD, which is apparendy a related company to GPI. Furthermore, although Carquest was not required to purchase the computer in order to continue doing business under the Amended Carquest Agreement, Carquest is aware of another Carquest Jobber who was allowed instead to buy an upgrade for its existing computer, which was identical to the existing computer that was being used by Carquest. Curiously, this option was never disclosed or offered to Carquest by GPI. The upgrade only cost $3,500.00 and the difference between the purchase price of a new computer and that of the upgraded posed an onerous burden upon Carquest which would have chosen the upgrade alternative if it had been given the opportunity to do so.
10. In or around August of1999, following the purchase of the computer by Carquest, Carquest began experiencing significant problems with the computer which interfered with and impaired the operation of the business. [Carquest] registered several complaints with GPI and its computer servicing or liaison company, J-CON, requesting that the problems be corrected pursuant to the agreement under which [Carquest] purchased the computer. All of the requests for assistance by [Carquest] went unheeded and the problems with the computer continued.
Carquest asserts that GPI’s unresponsiveness to Carquest’s requests for help with the computer problems was the reason Carquest stopped payment on its $23,000.00 check to GPI. According to Carquest, GPI retaliated and took actions “designed to run [Carquest] out of business and to terminate their distributorship.” Carquest requests monetary compensation, including punitive and treble damages.
Carquest filed an amendment to answer and counterclaim, and GPI responded by generally denying the allegations in the counterclaim and filing an amended complaint. Almost four years later, on January 8, 2004, Carquest filed an amendment to the counterclaim and motion to proceed as a class action pursuant to Rule 23 of the Arkansas Rules of Civil Procedure. When the circuit court granted a motion for a more definite statement filed by GPI, Carquest filed a second amendment to counterclaim and motion to proceed as a class action. In that pleading, Carquest claims that GPI engaged in an illegal tying arrangement, forcing Carquest and members of the class to purchase computer hardware from GPI and software from Comparative Computing, Inc., at a price far above what Carquest could have paid for the same equipment on the open market. GPI then filed a motion to dismiss the second amendment to counterclaim and motion to proceed as a class action, arguing that the illegal tying arrangement alleged in the amended counterclaim was governed by the Sherman AntiTrust Act, 15 U.S.C. § 1 et seq., and its four-year statute of limitations. According to GPI, the illegal tying claim was barred by the statute of limitations because the amended counterclaim was filed more than four years after August, 1999, the alleged purchase date of the computer.
At the hearing on GPI’s motion to dismiss, Carquest insisted that the illegal tying arrangement was not governed by the Sherman Act statute of limitations, and that the second amended counterclaim should relate back to the original counterclaim filed on January 25, 2000, pursuant to Ark. R. Civ. P. 15(c) (2004). Following the circuit court’s request for further briefing, Carquest filed a supplemental brief to establish authority outside the Sherman Act for its illegal-tying-arrangement claim. In its brief, Carquest argued that the claim was appropriate under the Arkansas Unfair Practices Act (“AUPA”), Ark. Code Ann. §§ 4-75-201, et seq. (Supp. 2003), and that the claim was governed by the general five-year statute of limitations in Ark. Code Ann. § 16-56-115 (Repl. 1999). GPI responded, arguing the AUPA did not address illegal tying arrangements and could not support the claim. Furthermore, GPI contended that Carquest did not have standing under the AUPA to bring a claim against GPI because Carquest was a consumer and not in competition with GPI. On April 29, 2004, the circuit court entered an order granting the motion to dismiss, ruling that “[a]ny illegal tying arrangement is barred by the statute of limitations contained in the Sherman Anti-Trust Act. There exists no state law which prohibits illegal tying arrangements or gives rise to a cause of action related thereto.” Carquest appeals that order. We assumed the instant appeal for caseload balance pursuant to Ark. R. Sup. Ct. 1-2(g) (2004).
The order that is the subject of this appeal is not a final order. We have repeatedly held that, to be appealable, an order must be final and the finality of a trial court’s order is governed by Ark. R. Civ. P. 54(b). Stockton v. Sentry Insurance, 332 Ark. 417, 965 S.W.2d 762 (1998). Rule 54(b) states,
(1) Certification of Final Judgment. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination, supported by specific factual findings. . .
(2) Lack of Certification. Absent the executed certificate required by paragraph (1) of this subdivision, any judgment, order, or other form of decision, however designated, which adjudicated fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the actions as to any of the claims or parties, and the judgment, order, or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all of the parties.
Ark. R. Civ. P. 54(b)(2) (2004). Here, the parties have been involved in a long and intensive batde involving many claims and counterclaims, most of which are still outstanding. For example, in its original answer and counterclaim, Carquest asserts claims against GPI for (1) wrongful termination of contract, (2) breach of the implied duty of good faith and fair dealing, and (3) violation of the Arkansas Franchise Practices Act. The circuit court’s order granting the motion to dismiss does not resolve any of those claims or any of the claims GPI alleges in its complaint. The order merely disposes of “any claim, whether federal or otherwise related to the alleged illegal tying arrangement.” Moreover, Carquest failed to request certification pursuant to Ark. R. Civ. P. 54(b)(1) (2004). In the absence of such a determination, an order is not final when it adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties. Stockton v. Sentry Insurance, supra.
Furthermore, we disagree with Carquest’s suggestion that the order is reviewable under Rule 2(a)(9) of the Rules Appellate Procedure - Civil, which allows for the interlocutory appeal of orders granting or denying class certification. In its response to Carquest’s supplemental brief, GPI expressly noted that the motion to dismiss did not address the issue of class certification:
The issue before this Court regarding General Parts, Inc.’s Motion to Dismiss Second Amendment to Counterclaim and Motion to Proceed as a Class Action deals with two issues; specifically:
1. Is the “illegal tying” claim brought forward by [Appellants] timely, given that the Sherman Anti-Trust Act has a four-year statute of limitations; and
2. Is there a viable state law cause of action which prohibits “illegal tying” arrangements?
No motion has been made regarding the viability of a class action nor are any other portions of the Counterclaim, amended or otherwise, sought to be dismissed by this Motion.
Moreover, the circuit court’s order granting the motion to dismiss does not indicate that the court considered the issue of class certification. Despite the fact that the order is completely silent on the issue of class certification, Carquest proposes that the court’s grant of the motion to dismiss should be treated as a denial of the motion to certify the case as a class action. Specifically, Carquest states as follows:
Appellants were under an obligation, based on the entry of this order, to appeal, or forever lose their right of appeal, because this is clearly a subject of appeal under Rule of Appellant [sic] Procedure - Civil, Rule 2(a)(9), which provides that an appeal may be taken from a circuit court to the Arkansas Supreme Court from an order granting or denying a motion to certify a case as a class action in accordance with Rule 23 of the Arkansas Rules of Civil Procedure.
Yet, Appellate Rule 2(a)(9) only allows appeals from “an order granting or denying a motion to certify a case as a class action in accordance with Rule 23 of the Arkansas Rules of Civil Procedure.” Ark. R. App. P. - Civ. 2(a)(9) (2004). Though never expressly stated by Carquest, it appears to suggest that, because the circuit court dismissed the claim underlying the class action, the court effectively denied class certification. However, we have never held that dismissal of claims underlying a class action should equate to denial of class certification. Thus, where the underlying claims in a potential class action are dismissed, and those claims are fewer than all of the claims in the lawsuit, the dismissal of such claims without the resolution of the remaining claims does not constitute a “final order.”
Appeal dismissed.
Dickey, J., not participating. | [
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Per Curiam.
Thomas B. Devine III, a full-time, state-salaried public defender for the Sixth Judicial District, was appointed by the trial court to represent appellant, Bryant Woods, an indigent defendant, on the charge of capital murder. Following a trial, he was convicted of the charge and was sentenced to life imprisonment without parole. A notice of appeal was timely filed, and a request for the transcribed record has been timely lodged in this court.
Mr. Devine now moves to withdraw as counsel on appeal based upon Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000), which held that full-time, state-salaried public defenders were ineligible for compensation for their work on appeal. Since Rushing, the General Assembly has passed legislation providing that only those full-time, state-salaried public defenders who do not have state-funded secretaries may seek compensation for their work on appeal. See Ark. Code Ann. § 19-4-1604(b)(2)(B) (Supp. 2003).
Mr. Devine states in his motion that he is provided with a full-time, state-funded secretary who maintains his day-today office operations. Accordingly, we grant his motion to withdraw.
Mr. Brent Houston will be substituted as counsel for appellant in this matter. The Clerk will establish a new briefing schedule.
It is so ordered. | [
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Per Curiam.
The procedural background of this matter is set in Jackson v. State, 361 Ark. 144, 205 S.W.3d 137 (2005). Mr. William M. Howard, Jr. appeared before this court on March 24, 2005, to show cause why he should not be held in civil contempt for failing to comply with the terms of our previous per curiam orders. Mr. Howard pled not guilty to contempt and denied that he should be held in contempt for noncompliance with our orders.
We hereby appoint a special master, the Honorable Jack Lessenberry, to conduct a hearing on this matter. Upon receipt of the master’s findings, we will render a decision on the matter. | [
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Jim Hannah, Chief Justice.
Shelby A. Ward, III (Shelby), appeals a decision of the Union County Circuit Court regarding child support. Shelby argues that the circuit court erred in denying his request for retroactive modification of support, in awarding the amount of past medical expenses, in failing to credit the amount of child support due based on the time the children were staying with him, and in ordering child support when each parent now has custody of one child. Jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b)(6) because this case involves a substantial question of law regarding the validity, construction, and interpretation of Ark. Code Ann. § 9-14-237 (Supp. 2003).
Facts
Shelby and Teresa Gail Ward (Teresa) were divorced on January 9, 1996. Custody of the Wards’ three children, Maegan, Lacey, and Shelby A., IV (Shelby IV), was awarded to Teresa, and Shelby was ordered to pay child support of $220 every two weeks. The decree also provided that while either party could insure the children, all medical and dental costs were to be shared equally.
Shelby filed a motion on August 7, 2003, requesting a change of custody for Lacey, seeking cancellation of all child support because Maegan had reached eighteen (18) years of age and finished high school, and because one of the two remaining children was living with him and the other was living with Teresa. Teresa counterclaimed for payment of past medical and dental expenses. Subsequently, on September 17, 2003, Shelby filed a motion for abatement of child support and set-off, seeking retroactive credit for child support paid for Maegan after she turned eighteen. In this same motion, he also sought a reduction in any amount the court might find that he owed Teresa by the total dollars he should have been credited over the years because under the terms of the divorce decree, child support abated by one-half any time a child stayed with him for more than two weeks.
At the trial, the evidence showed that in August 1999, Maegan moved in with her father and lived there for that school year, as well as the school years commencing in August 2000 and August 2001. While testimony showed that Maegan lived with her father for a total of 116 weeks during these three school years, Teresa’s testimony showed that Maegan spent time at her house during these 116 weeks, and that she was supported in part by Teresa. Maegan turned eighteen on September 11, 2002, and had finished high school by that date. In June 2003, Lacey moved in with her father. Shelby IV still lives with Teresa.
Standard of Review
Our standard of review for an appeal from a child-support order is de novo on the record, and we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001). In reviewing a circuit 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. As a rule, when the amount of child support is at issue, we will not reverse the chancellor absent an abuse of discretion. Id. However, a circuit court’s conclusion of law is given no deference on appeal. Id.
In this case, we are asked to interpret Ark. Code Ann. § 9-14-237. The basic rule of statutory construction is to give effect to the intent of the legislature. Barclay v. First Paris Holding Co., 344 Ark. 711, 42 S.W.3d 496 (2001). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. We construe the statute so that no word is left void, superfluous or insignificant. Id. Meaning and effect are given to every word in the statute if possible. Id. When a statute is ambiguous, we must interpret it according to the legislative intent. Id. Our review becomes an examination of the whole act. We reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. We also look to the legislative history, the language and the subject matter involved. Id.
Retroactive Modification of Child Support/Failure to Give Notice
Shelby argues that the circuit court erred in refusing to grant him a credit for support payments he made for the benefit of Maegan after she turned eighteen. The circuit court found that Ark. Code Ann. § 9-14-237 does not automatically terminate child support obligations upon a child’s eighteenth birthday. This decision was based on language in the statute that imposes on the child support obligor a duty to notify the custodial parent of an intent to discontinue child support payments for a child who has reached the age of eighteen if there are other minor children for whom support would continue. The circuit court concluded that because Shelby “did not notify Plaintiff of his intent to reduce child support . . . the abatement of child support retroactively to the birthday of Maegan is not available to Defendant.”
Section 9-14-237 was amended by Act 1075 of 1999 to require that the custodial parent and physical custodian of the child, in addition to the clerk of the court, receive written notice by the obligor of termination of the obligation of child support. The same amendment provided that an obligor “may” file a motion in the circuit court requesting that child support be determined for the remaining children. This statute, prior to and after the 1999 amendment, provides that the obligation to pay child support terminates by operation of law “when the child reaches eighteen (18) years of age, or should have graduated from high school, whichever is later.” In Rogers v. Rogers, 83 Ark. App. 206, 210, 121 S.W.3d 510 (2003), the court of appeals stated that Ark. Code Ann. § 9-14-237, “provides that an obligor’s duty to pay child support for a child shall automatically terminate by operation of law when the child reaches eighteen years of age or should have graduated from high school, whichever is later.” Earlier in Office of Child Support Enforcement v. Tyra, 71 Ark. App. 330, 334, 29 S.W.3d 780 (2000), the court of appeals held that the chancellor “did not err by calculating a reduced amount of arrearage appellee owed by taking into account those child-support obligations that had terminated by operation of law.” This court has not spoken on the meaning of Ark. Code Ann. § 9-14-237.
The statute provides that the duty to pay support “shall automatically terminate by operation of law.” Ark. Code Ann. § 9-14-237(a)(1) (Supp. 2003). In this case, support for Maegan terminated when she reached eighteen “or should have graduated from high school, whichever is later.” Ark. Code Ann. § 9-14-237(a)(1)(A) (Supp. 2003). However, the statute also provides that “[t]he obligor shall provide written notification of the termination of the duty of support to the custodial parent. . . within (10) ten days of the termination of the duty of support. Ark. Code Ann. § 9-14-237(b)(5)(A)(Supp. 2003). It further provides that “[i]fthe obligor has additional child support obligations after the duty to pay support for a child terminates, then the obligor . . . may within (30) thirty days subsequent to the expiration of the ten-day period allowed for notification, as provided in (b)(5) . . . file a motion . . . requesting that the court determine the amount of the child support obligation for the remaining children.” Ark. Code Ann. § 9-14-237(b)(l) (Supp. 2003). Additionally, in section (4)(A) (Supp. 2003), the statute provides that “[i]n the event a review is requested, the court shall apply the family support chart for the remaining number of children . . . .” This implies that a court review is not necessary to effectuate the termination. This is consistent with the language in the statute that the duty to pay support shall terminate by operation of law.
The Florida District Court of Appeal stated that “[t]he term operation of law has been defined as the manner in which rights devolve upon a person by the mere application of the established rules of law, without the act or co-operation of the party himself.” Kaplus v. First Cont’l Corp., 711 So. 2d 108, 111 (Fla. Dist. Ct. App. 1998) (quoting Dawson v. Dawson, 645 S.W.2d 120, 126 (Mo. Ct. App. 1982)). Although this court has not defined the term, it appears that the definition in Kaplus, supra, is consistent with this court’s opinions and rules. Arkansas Rule of Appellate Procedure-Civil 4 provides that in the event a party files a post-trial motion under Ark. R. Civ. P. 50 or 59, the motion will be deemed denied by operation of law if the circuit court fails to act on the motion within thirty days of its filing. See U. S. Bank v. Milburn, 352 Ark. 144, 100 S.W.3d 674 (2003). This is consistent with the language in the subject statute that the child support terminates by operation of law. Similarly, in Marion County Rural Sch. Dist. 1 v. Rastle, 265 Ark. 33, 576 S.W.2d 502 (1979), this court discussed a teacher who was not given the statutorily required notice of nonrenewal. This court stated, “We agree with the trial court that the contract was extended by operation of law for the succeeding year and the district should have been required to pay Rastle.” Rastle, 265 Ark. at 36.
The duty to pay child support terminates by operation of law without any action by the obligor whatever when the conditions of the statute are met. The preamble to Act 326 supports this conclusion;
An Act to require that an obligation to pay child support shall expire by operation of law under certain conditions; that the court shall reassess child support obligations for other children when an obligor’s duty to pay support for a child expires; and for other purposes.
Section 9-14-237 terminates the obligation to support a child under its terms without any action on the part of the obligor. Although Ark. Code Ann. § 9-14-237(b)(5)(A) provides that notice “shall” be given it is directory rather than mandatory. This court in Fulmer v. State, 337 Ark. 177, 183-84, 987 S.W.2d 700 (1999) stated;
Though ordinarily the word “shall” is mandatory, and the word “may” is directory, they are often used interchangeably in legislation. Arkansas State Highway Comm’n v. Mabry, 229 Ark. 261, 315 S.W.2d 900 (1958). In Mabry, this court recognized that to carry out the legislature’s intent, the word “shall” may, in certain circumstances, be construed as the equivalent of the word “may.” This court concluded that if the language of the statute, considered as a whole and with due regard to its nature and object, reveals that the legislature intended the word “shall” to be directory, it should be given that meaning.
Since Mabry, this court has consistendy held that the use of the word “shall” in a statute means that the legislature intended mandatory compliance with the statute unless such an inteipretation would lead to an absurdity. See Hattison v. State, 324 Ark. 317, 920 S.W.2d 849 (1996); Klinger v. City of Fayetteville, 293 Ark. 128, 732 S.W.2d 859 (1987); Loyd v. Knight, 288 Ark. 474, 706 S.W.2d 393 (1986). This court has also consistendy held that in determining whether a statute’s provisions are mandatory or merely directory, we adhere to the principle that those things which are of the essence of the thing to be done are mandatory, while those not of the essence of the thing to be done are directory only. See McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991); Taggart & Taggart Seed Co., Inc. v. City of Augusta, 278 Ark. 570, 647 S.W.2d 458 (1983); Edwards v. Hall, 30 Ark. 31 (1875).
The question then is whether the legislature intended section 9-14-237(b)(5)(A) to mandate that notice must be given before the duty to pay child support terminates. We conclude that because the duty to pay child support terminates by operation of law, the legislature did not intend that the notice provision requires mandatory or strict compliance.
Shelby’s obligation to pay child support for Maegan expired by operation of law on September 11, 2002, when Maegan turned eighteen years old and had graduated from high school. However, Shelby’s duty to provide child support for Lacey and Shelby IV remained. We must reverse and remand this issue for the circuit court to recalculate child support due under the then applicable Family Support Chart for Lacey and Shelby as of Maegan’s eighteenth birthday on September 11, 2002, taking into account Shelby’s income as of that date. If the amount of child support Shelby paid between September 11, 2002, and February 12, 2004, exceeds the amount he should have paid for Lacey and Shelby, he is due a credit. If not, then he owes the amount he should have paid but did not pay.
Evidence of Medical Expenses and Failure to Give Credit for 1Í6 Weeks
Shelby asserts that the circuit court erred in awarding medical expenses based on medical and dental bills that were never introduced into evidence. He also asserts that circuit court’s decision that he receive only 75% credit for the 116 weeks that Maegan lived with him prior to her eighteenth birthday was arbitrary and error. In both instances, the evidence the circuit court relied upon was Teresa’s testimony. Shelby did not object to this testimony. Admission of evidence is under an abuse of discretion standard. Martin v. Arkansas, 354 Ark. 289, 119 S.W.3d 504 (2003). Shelby provides no convincing authority for his arguments that the circuit court erred on these issues. This court has repeatedly held that we do not consider assignments of error that are unsupported by convincing authority. Holcombe v. Marts, 352 Ark. 201, 99 S.W.3d 401 (2003).
Order of Further Child Support
The circuit court stated in its order:
The Defendant filed his petition to Change Custody and adjust child support on August 7, 2003. His obligation to pay child support from that date to the present shall be reduced from $110.00 per week to $86.00 per week. This would result in 22 weeks at $24.00 or $528.00 for which Defendant should receive additional credit against his share of the medical expenses paid by Plaintiff.
The circuit court decided this issue based on the $110 per week child support ordered in the 1996 divorce decree. Shelby argues that the circuit court erred in computing the amount. He is correct, especially since we are remanding the case for child support obligation to be determined as of September 11, 2002, based on Shelby’s income as of that date. Accordingly, we reverse and remand for recalculation based on the difference between the support obligations of Shelby and Teresa under the Family Support Chart. The order must provide the court’s determination of the payors’ income, reciting the amount of support required under the guidelines, and reciting whether the court has deviated from the Family Support Chart as well as, in the. case of a variance from the Chart, a justification of why the order varies as permitted under the statute. Akins v. Mofield, 355 Ark. 215, 132 S.W.3d 760 (2003).
Affirmed in part. Reversed and remanded in part.
Prior to Act 1075 of 1999 amending Ark. Code Ann. § 9-14-237 to require notification of the custodial parent, the court of appeals in James v. James, 52 Ark. App. 29, 34, 914 S.W.2d 773 (1996), stated that “under Act 326 (Ark. Code Ann. § 9-14-237) appellant’s child support obligation for Jacy terminated by operation of law on August 13,1993, the effective date of the Act.Further, in Mixon v. Mixon, 65 Ark. App. 240, 245, 987 S.W.2d 284 (1999), the court of appeals held consistently withJames, supra, that “appellant had no legal right to receive child support for her emancipated child when the General Assembly prescribed that support for that child would ‘automatically terminate by operation of law.’ ” | [
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Jim Hannah, Chief Justice.
Fred Phillips appeals his convictions for breaking or entering under Ark. Code Ann. § 5-39-202 (Repl. 1997) and theft of property under Ark. Code Ann. § 5-36-103 (Supp. 2001). Phillips was sentenced to ten years in prison and argues that the circuit court erred in denying his motion for a directed verdict because neither the presence of his fingerprint on the inside of the window of the open car door nor any inference arising from his fingerprint constitutes sufficient evidence to sustain the verdict that he was the person who broke into the car and stole music CDs. We hold that Phillips failed to raise the appealed issue in his directed-verdict motion, and on that basis, we affirm his conviction. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 2-4 because this case is before this court on a petition for review. The Court of Appeals affirmed the circuit court. See Phillips v. State, 88 Ark. App. 17, 194 S.W.3d 222 (2004). The circuit court is affirmed and the decision of the court of appeals is affirmed as modified.
Standard of Review
When this court grants a petition to review a decision by the court of appeals, this court considers the appeal as if it had been originally filed in this court. Hunt v. State, 354 Ark. 682, 128 S.W.3d 820 (2003). Phillips asserts a single issue on appeal, that the circuit court erred in denying his motion for a directed verdict. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Id. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Id. We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id.
Facts
Mickey Schuetzle testified that about 8:00 a.m., on April 17, 2002, he went into the parking lot of his apartment building arid found the passenger-side door of his car standing open about tw'o feet. He further testified that he had parked his car, a 1998 Ford Mustang Convertible, at about 9:00 p.m. the evening before and locked it. Schuetzle additionally testified that upon looking in the car, he found that the glove box was open, that papers and documents were scattered around within the car, and that approximately fifty music CDs were missing.
Schuetzle is a detective with the North Little Rock Police Department and was assigned to the property crimes unit at the time. He carried out the investigation in this case, including seeking fingerprint and other evidence from the crime scene. At trial, Schuetzle testified that he obtained fingerprints from near the top of the inside of the passenger-side window. He also testified that the Arkansas State Crime Laboratory ran the prints through the Automatic Fingerprint Identification System (AFIS), which returned a positive identification for Phillips on one fingerprint. James H. Beck of the Arkansas State Crime Laboratory testified about AFIS and the identification of Phillips by the fingerprint submitted by Schuetzle.
Directed Verdict
Phillips alleges on appeal that the circuit court erred in denying his directed verdict motion because neither the presence of his fingerprint on the inside of the window of the open car nor any inference arising from his fingerprint constitutes sufficient evidence to sustain the verdict that he was the person who broke into the car and stole music CDs. Before we may consider the merits of Phillips’s appeal, we must first determine whether the issue was properly preserved for appellate review. Maxwell v. State, 359 Ark. 335, 197 S.W.3d 442 (2004). To preserve an issue for appeal from a decision on a directed-verdict motion, the issue must be stated clearly and specifically to the circuit court. Patrick v. State, 314 Ark. 285, 862 S.W.2d 239 (1993). See also Ark. R. Crim. P. 33.1. The reasoning underlying this holding is that when specific grounds are stated and the absent proof is pinpointed, the circuit court can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof. Tester v. State, 342 Ark. 549, 30 S.W.3d 99 (2000).
A further reason that the motion must be specific is that this court may not decide an issue for the first time on appeal. State v. Fuson, 355 Ark. 652, 144 S.W.3d 250 (2004). This court may not afford relief that is not first sought in the circuit court. Weston v. State, 265 Ark. 58, 576 S.W.2d 705 (1979).
In his directed verdict motion on breaking or entering, Phillips argued that Schuetzle
“didn’t mark the [fingerprint] cards at all about where . . . [the fingerprints] originated from. . . . The evidence doesn’t link up with Mr. Phillips. . . . [Schuetzle is] asking the court to basically forgive his admitted mistakes . . . and believe his statement here today that the prints came from the inside of the vehicle.... We’d ask for a dismissal.”
The renewed directed-verdict motion simply restated these same arguments and did not raise any additional issues for the circuit court to decide. At trial, Phillips challenged the competence of the evidence identifying him as the person who left the fingerprint on the “inside of the vehicle.” On appeal, however, Phillips argues that the fingerprint on the inside window of an open car door and any inferences arising from the fingerprint constitute insufficient evidence to support the conviction for breaking or entering. This issue was not presented to the circuit court for decision in the motion for a directed verdict. Accordingly, we must affirm.
Phillips also challenged the evidence on the theft charge in his directed-verdict motion, but the circuit court’s decision on that issue is not challenged on appeal. | [
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RONALD L. SHEFFIELD, Justice.
liAppellant Melvin Lockhart III was convicted by a Pulaski County jury of capital murder in the death of David Edward Jones. He was also convicted of theft of property. He was sentenced to life imprisonment in the Arkansas Department of Correction for the capital-murder conviction and sentenced to fifteen years for the theft-of-property conviction, with an enhancement of an additional fifteen years for the use of a firearm. These sentences were to be served consecutively. Lockhart now appeals, alleging two points of error: 1) the circuit court erred in refusing to grant his motion for a directed verdict; and 2) the circuit court erred in admitting evidence of prior bad acts over his objections, pursuant to Arkansas Rules of Evidence 404(b) and 403. Because Lockhart was sentenced to a term of life imprisonment, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1 — 2(a)(2) (2010). We find no error and affirm.
l>On November 27, 2007, David Edward Jones was found slain in an industrial area of Little Rock with five gunshot wounds. There were no witnesses to the murder. Police investigators recovered .45 caliber shell casings at the scene where Jones was killed. Privately-owned surveillance cameras near the area captured images of a vehicle similar to the victim’s gold-colored 2000 Mercury Grand Marquis driving away from the crime scene. One image from a surveillance camera showed the victim’s vehicle driving by at approximately 9:08 p.m. An image from the surveillance camera of another business in the same area showed the victim’s vehicle driving past its location at 9:17 p.m.
At Lockhart’s trial, Benjamin Blunt and Leon Newton testified that, on the night of the Jones murder, Lockhart entered the auto body shop where they worked and held them at gunpoint attempting to rob them. Blunt described the gun as a .40 or .45 caliber pistol. The witnesses were able to get away from Lockhart. A 911 dispatcher received a call at 9:10 p.m. reporting the incident. The witnesses described the car in which Lockhart drove away as a gold Grand Marquis or a tan Crown Victoria. Newton testified that he saw two other passengers in the vehicle. They later identified the vehicle they saw as the one belonging to Jones.
Five days prior to Jones’s murder, Ray Hart was robbed and murdered in his home, suffering a single gunshot wound to his head. Lockhart was placed at the scene of Hart’s murder by three witnesses, one of whom participated in the robbery of Hart. The shell casing found at that crime scene matched the shell casings found at the Jones crime scene. The | ¡¡Arkansas State Crime Lab determined that the same .45 caliber pistol was used as the murder weapon in both crimes.
Lockhart was arrested and tried for the murder of David Jones and the theft of Jones’s car. At a pretrial hearing, the State sought to introduce the evidence of the murder of Hart under a Rule 404(b) exception, as a prior bad act, to prove identity. Lockhart objected to the admission of this evidence, but the trial court overruled his objection and admitted the evidence. The jury convicted Lockhart of both the murder of Jones and the theft of property. He now appeals from his convictions.
For his first point on appeal, Lockhart contends that there was insufficient evidence to convict him of the murder of Jones or the theft of Jones’s car because the State failed to prove that he was the person who murdered Jones, and that the trial court should have granted his motion for a directed verdict. Specifically, Lock-hart maintains that the introduction of Hart’s murder into evidence only showed that he had access to a gun five days prior to the night of Jones’s murder, but there were no witnesses who saw Lockhart with the murder weapon on that night. Furthermore, he argues that the testimony of Blunt and Newton actually provided an alibi for him because, by their testimony, the attempted robbery and subsequent 911 call occurred at approximately the same time as Jones’s murder. The State counters that Lockhart did not preserve his motion for directed verdict for appellate review because he did not make a clear and specific objection at trial. Furthermore, the State contends that Lockhart did not raise an alibi defense during trial and is now barred from raising it on appeal. Alternatively, |4the State argues that there was sufficient evidence to convict Lockhart of both the murder of Jones and the theft of Jones’s car.
On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Ellis v. State, 364 Ark. 538, 222 S.W.3d 192 (2006). The test for determining the sufficiency of the evidence is whether substantial evidence, direct or circumstantial, supports the verdict. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. Furthermore, this court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Rounsaville v. State, 2009 Ark. 479, 346 S.W.3d 289. Circumstantial evidence may be sufficient to support the finding of guilt in a criminal case, but it must exclude every other reasonable hypothesis consistent with innocence. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). In addition, the credibility of witnesses is an issue for the jury and not the court. The fact-finder is free to believe all or part of the witness’s testimony, and to resolve questions of conflicting testimony and inconsistent evidence. Rather than reweighing the evidence presented at trial, this court determines whether there is substantial evidence to support the lower court’s findings. Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998). With regard to preserving a sufficiency challenge for appellate review, this court has stated that
[t]o preserve a sufficiency-of-the-evidence challenge on appeal, a clear and specific motion for a directed verdict must be made to the trial court.... [T]he reasoning behind this rule is “that when specific grounds are stated and the absent proof is pinpointed, the circuit court can either grant the motion, or, if justice requires, allow |sthe State to reopen its case and supply the missing proof.”
Elkins v. State, 374 Ark. 399, 402, 288 S.W.3d 570, 573 (2008) (quoting Pinell v. State, 364 Ark. 353, 357, 219 S.W.3d 168, 171 (2005)).
Under ArkCode Ann. § 5-10-101, a person commits capital murder if “with premeditated and deliberate purpose of causing the death of another person, the person causes the death of any person.” ArkCode Ann. § 5-10-101(a)(4) (Supp. 2009). Furthermore, a person acts purposely when it is “the person’s conscious object to engage in conduct of that nature or to cause that result.” ArkCode Ann. § 5-2-202(1) (Supp.2009). With regard to property offenses, a theft of property occurs when “a person takes or exercises unauthorized control over the property of another person with the purpose of depriving the owner of property.” ArkCode Ann. § 5-36-103(a)(l) (Supp.2010).
In the case at hand, Lockhart argues that there was insufficient evidence to convict him of the murder of David Jones or the theft of Jones’s vehicle. He maintains that because Blunt and Newton placed him at the scene of an attempted robbery at 3822 Mabelvale Pike Road at 9:10 p.m., it could not have been him driving Jones’s vehicle at 9:08 in an industrial park near 23rd and Commercial Streets, the scene of Jones’s murder, as captured by the surveillance cameras. With regard to a possible alibi, this issue was not raised at trial when Lockhart moved for a directed verdict and cannot now be raised for the first time on appeal. See Johnson v. State, 318 Ark. 425, 886 S.W.2d 584 (1994). As to Lockhart’s claim that there was insufficient evidence of his identity as the murderer, the State argues that Lockhart failed to object with |fispecificity as to why the court should have granted his motion for directed verdict. At trial, however, Lockhart stated that the State failed to meet its burden of proof in showing that he “was the one who committed Capital Murder, feloniously, with a premeditated and deliberate purpose of causing the death of another person.” His motion for directed verdict was, therefore, sufficiently specific so as to preserve it for appeal.
The following evidence is sufficient to support his conviction. Jacob Rice, an employee of Magna IV Printing, testified that he saw a vehicle drive by his business, which was located near a Federal Express store in the same industrial park. A few moments later, he heard gunshots and then saw the same car drive quickly back past him. Surveillance video from the Federal Express store showed Jones’s vehicle driving by after the shooting. Jones’s vehicle was also identified by witnesses Benjamin Blunt and Leon Newton as the vehicle driven by Lockhart when he attempted to rob them. Furthermore, both witnesses testified that Lockhart was in possession of a handgun because he drew it when he entered Blunt’s place of work and demanded money. The gun was identified as a .40 or .45 caliber pistol.
Also relevant are the details of the murder of Ray Hart. Lockhart, Toni Boggs, and two of Lockhart’s relatives drove to Hart’s trailer with the intent to rob him. Boggs and Lockhart went into the trailer and stole Hart’s wallet. Boggs left the mobile home and Lockhart was left alone with Hart. The witnesses testified that Lockhart was alone with the victim when they heard a gunshot, after which he came out of the trailer, he got in the car, and they drove off. The Arkansas State Police Crime Lab confirmed that the casing found at |7the Hart homicide was fired from the same weapon as those found at the Jones murder. Furthermore, the State offered evidence that on the night of Jones’s murder, Lockhart was in posses sion of a .45 caliber gun, as testified to by Blunt and Newton. By placing Lockhart at the scene of both the murder of Hart and the attempted robbery of Blunt and Newton, the State was able to link Lock-hart to Jones’s murder by showing that he had access to a .45 caliber gun; that a .45 caliber gun was used on the night of Jones’s murder; and that the appellant had previously used the same gun in the murder of Hart. Furthermore, based on Newton’s testimony that there were two other passengers in the car as it drove away, the jury could infer that, because the vehicle belonged to Jones, Jones was one of the two other passengers, and, thus, he was with Lockhart immediately prior to the murder. Therefore, based on the testimony and evidence introduced, we hold that there was sufficient evidence to convict Lockhart of the murder of David Jones and the theft of Jones’s vehicle. Thus, the trial court did not err in refusing to grant Lockhart’s motion for a directed verdict.
For his second point on appeal, Lock-hart makes two assertions: 1) the circuit court erred in allowing the State to admit evidence of the murder of Hart under Ark. R. Evid. 404(b) and 403 because the evidence had no independent relevance, was admitted solely to show his bad character and propensity to commit murder, was cumulative, and was unfairly prejudicial; and 2) the circuit court erred in allowing the testimony of Benjamin Blunt and Leon Newton because their testimony should have been excluded under Ark. R. Evid. 404(b) and 403 as well.
hWe dispose of Lockhart’s first assertion that the circuit court erred in admitting the evidence of Hart’s murder. Lockhart claims that the State grossly overreached in presenting the evidence once it was admitted and that the circuit court should have issued a limiting instruction indicating the purpose for admitting the evidence. Lockhart also challenges the evidence on the grounds that it was not independently relevant, that its probative value was substantially outweighed by its prejudicial effect, and that such evidence was cumulative under Ark. R. Evid. 403. The State counters that Lockhart failed to request a limiting instruction to the jury informing them of the State’s use of the evidence of the Hart murder at trial as cumulative or overreaching and cannot now claim error. Lockhart’s argument that “the trial court abused its discretion when it admitted [the evidence] without either a cautionary instruction or any effort to keep the State within proper limits” was not preserved for appeal as he did not request this relief at trial. Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994). Furthermore, even if the State had “grossly overreached” in its use of the evidence of Hart’s murder, as Lockhart claims, Lockhart did not object to the State’s actions as being outside the limited purpose for which the evidence was admitted — to prove identity. Therefore, this argument is not preserved for appeal. See Kennedy v. State, 344 Ark. 433, 42 S.W.3d 407 (2001).
With respect to Lockhart’s argument that the court erred in admitting evidence of Hart’s murder under Ark. R. Evid. 404(b) and 403 because it was not independently relevant and its probative value was substantially outweighed by its prejudicial effect, we have 19previously stated that the admission or rejection of evidence under Rule 404(b) is committed to the sound discretion of the circuit court, which this court will not disturb on appeal absent a showing of manifest abuse. Smith v. State, 2010 Ark. 75, 364 S.W.3d 443. Arkansas Rule 404(b) states that
[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Ark. R. Evid. 404(b) (2009). Furthermore, we have previously stated in Smith that
[ejvidence offered under Rule 404(b) must be independently relevant to make the existence of any fact of consequence more or less probable than it would be without the evidence. Kelley [v. State, 2009 Ark. 389, 327 S.W.3d 3731 supra. In other words, the prior bad act must be independently relevant to the main issue, in that it tends to prove some material point rather than merely proving that the defendant is a criminal. Id. Evidence may be independently relevant if it shows motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. See Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997).... In addition, we have held that evidence may be relevant in connection with other facts to form a link in the chain of evidence necessary to support a party’s contention. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003). Furthermore, testimony can be relevant if it provides the necessary context for other evidence.
Smith, 2010 Ark. 75, at 5, 364 S.W.3d at 446. Pursuant to Ark. R. Evid. 403, “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Ark. R. Evid. 403 (2009). Thus, a trial court may refuse to admit evidence that is unfairly prejudicial to the defendant, even if it might be relevant.
In the case at hand, Lockhart claims that the testimony regarding the Hart murder was | in not independently relevant and that its probative value was substantially outweighed by its prejudicial effect. We disagree. The State introduced the evidence of Hart’s murder to establish that Lockhart had access to a .45 caliber pistol on the night he murdered Jones by showing that five days prior to that murder, Lockhart was present at another crime scene in which the same .45 caliber pistol was used to murder the victim. The shell casing recovered from that murder matched those recovered from Jones’s body, tying Lockhart to both murders, and making it more probable that Lockhart committed the Jones murder. Thus, it was independently relevant. Furthermore, this evidence was more probative in determining who killed Jones than it was unfairly prejudicial. Therefore, the evidence of Hart’s murder was admissible.
For his second assertion, Lock-hart claims that the State’s purpose in introducing the testimony of Blunt and Newton was to bolster its case by showing that Lockhart was armed on the night of the murder and to connect him to Jones’s vehicle. He asserts that this testimony had no independent relevance and should have been excluded under Ark. R. Evid. 404(b) and 403. He maintains that evidence of other crimes is not admissible if it is only offered to show that the defendant had a gun. Furthermore, he argues that the testimony of Blunt and Newton, indicating that Jones’s vehicle was the one driven by Lockhart, was not probative because the description they gave of the car driven by Lockhart did not match Jones’s vehicle. Therefore, Lockhart contends, the trial court should not have allowed the testimony under either Rule 404(b) or Rule 403 because the evidence only served a facially | ninvalid purpose and was cumulative and unfairly prejudicial.
In support of his argument, Lockhart relies on Rowdean v. State, 280 Ark. 146, 655 S.W.2d 413 (1983). In Rowdean, the appellant was convicted of first degree murder in a shooting outside a nightclub. The State introduced evidence of an incident that occurred the same night as the crime, wherein the defendant pulled a gun on a patron at another location, to help prove that she committed the crime. On appeal, this court reversed the conviction, stating that the evidence of the previous incident “was not relevant to the motive, opportunity, intent, preparation or plan of the murder charge in question. It [was] an instance of the State using a separate prior act to prove another charge and, consequently, it was highly prejudicial.” Id. at 148, 655 S.W.2d at 414. Therefore, it was inadmissible.
Lockhart relies on Rowdean for his assertion that the State introduced the Blunt and Newton testimony only to show that he had a gun and, thus, the evidence was inadmissible for this purpose. Lockhart is incorrect in his assertion. In Rowdean, we reversed the conviction because the State failed to offer a proper purpose for introducing the evidence under Ark. R. Evid. 404(b); it did not offer the evidence to prove the identity of the defendant because the defendant’s identity was not at issue and the remaining purposes for admitting the prior bad act were not relevant to the case.
The State, in turn, argues that it offered the testimony of Blunt and Newton to prove the identity of Lockhart, and that the evidence was independently relevant to the main issue of identifying Lockhart as the murderer of David Jones because it establishes that Lockhart had 112access to a .45 caliber gun on the night of Jones’s murder. The State relies on Bohanan v. State, 324 Ark. 158, 919 S.W.2d 198 (1996), in support of its argument. In Bohanan, the appellant was convicted of capital murder in an attempted robbery. In that case, two parties were gathered at the home of another person when the victim stopped by to purchase a television. A witness left the home to give the victim a ride home. The appellant and another witness left the home and approached the victim. The witness who was in the vehicle with the victim saw the appellant hold a gun to the victim’s head. The witness got out of the car and ran away; he then heard two gunshots. The witness who left with the appellant told police that he and the appellant were in the appellant’s car the night of the murder. Police found the appellant’s car and confiscated it, finding a bullet that matched that found at the crime scene. On appeal the defendant claimed that it was error for the trial court to allow into evidence the bullet found in the defendant’s vehicle because it was irrelevant and unfairly prejudicial. The court stated that
[according to Ark. R. Evid. 401, relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.... We cannot say that the trial court in this instance abused its discretion. A .45 caliber bullet and three .45 caliber shell casings were recovered from the scene, including two which were manufactured by the Winchester Cartridge Company; a .45 caliber cartridge manufactured by the Winchester Cartridge Company was recovered from Bohanan’s ear. It was thus more probable that Bohanan had access to a .45 caliber weapon at the time of the homicide.
Bohanan further submits that the introduction of the bullet was unduly prejudicial and created a danger that “the jury would attach undue significance to this evidence and conclude that the ap pellant was somehow involved in the alleged offense.” ... This weighing is a matter left to the trial court’s sound discretion and will not be reversed absent a showing of manifest abuse. Id. The appellant has simply failed | 13to establish an abuse of discretion in this instance.
Bohanan, 324 Ark. at 166-67, 919 S.W.2d at 203. In Bohanan, the court determined that the presence of the bullet in the appellant’s car was relevant because the victim was killed with a .45 caliber bullet and the appellant had a .45 caliber bullet in his car. Thus, the court held, the evidence had a tendency to make it more probable that appellant had access to a .45 caliber weapon at the time of the homicide, and this evidence was not unfairly prejudicial. Likewise, in this case the State’s introduction of the testimony of Blunt and Newton was relevant because Jones was murdered with a .45 caliber gun and Lockhart had access to a .45 caliber gun that night. Furthermore, Blunt and Newton’s testimony placed Lockhart with Jones’s vehicle on the night of the murder because they identified the car he was in as belonging to Jones.
We hold that the trial court did not err in admitting the evidence of the attempted robbery of Blunt and Newton. Under the requirements of Rule 404(b), the evidence of a prior act must tend to prove a material point to be admissible, not merely to show that the person is a criminal. The State claims that this evidence is relevant to prove identity. As we stated in Smith v. State, 2010 Ark. 75, 364 S.W.3d 443, evidence of a prior act may be relevant in connection with other facts to form a link in the chain of evidence necessary to support a party’s contention. The evidence offered by the State of the attempted robbery was provided to show yet another link in the chain of evidence that helped identify Lockhart as the murderer of Jones. On the night of Jones’s murder, Lockhart was seen by Blunt and Newton |14with a gun when he attempted to rob them. The testimony of Blunt and Newton placed Lockhart in a vehicle matching a description of Jones’s vehicle as it drove away from the attempted robbery. Jones was murdered within a short time of this attempted robbery. Thus, the above evidence made it more probable that Lock-hart murdered Jones and stole his vehicle, and, therefore, was relevant. Furthermore, the evidence was offered to prove identity, a proper purpose. Therefore, the testimony of Blunt and Newton was admissible under Rule 404(b). In addition, Lockhart has failed to demonstrate that the trial court abused its discretion in admitting the evidence under Rule 403 as unfairly prejudicial because the probative value of the evidence outweighed any prejudice. We, therefore, affirm on this point.
Pursuant to Rule 4 — 3(i) of the Rules of the Arkansas Supreme Court, the record in this case has been reviewed for all objections, motions, and requests made by either party, which were decided adversely to Lockhart. We find no errors and affirm on all points.
Affirmed. | [
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KENNETH S. HIXSON, Judge
| Appellant Jerry Cossey suffered an admittedly compensable low-back injury on August 9, 1993, while working for appellee Pepsi Beverage Company, as he was moving a case of Pepsi in a convenience-store cooler. At that time, Cossey was in his mid-thirties. He was treated conservatively for an extended period of time, and eventually he was issued an eleven-percent anatomical impairment rating, which is not at issue on appeal. At issue in the current appeal is Cossey’s entitlement to additional medical treatment for pain management and to wage-loss benefits in excess of the anatomical impairment rating. The administrative law judge found that Cossey was entitled to additional medical treatment and to twelve-percent in wage-loss disability benefits. On de novo review by the Commission, it found that Cossey | awas not entitled to any additional medical treatment but that Cossey was entitled to twenty-five percent wage loss disability.
Cossey appeals, and Pepsi cross-appeals. Cossey contends that there lacks substantial evidence to support denial of his request for additional medical treatment in the form of pain management, and that ’ there lacks substantial evidence to support the inadequate award of wage-loss disability benefits. Pepsi cross-appeals, contending that there lacks substantial evidence to support any award of wage-loss disability benefits. We affirm on direct appeal and on cross-appeal.
In reviewing Commission decisions, we view the evidence in the light most favorable to the Commission’s decision and affirm it if it is supported by substantial evidence. Hill v. Treadaway, 2014 Ark. App. 185, 433 S.W.3d 285. Substantial evidence exists, if reasonable, minds could reach the Commission’s conclusion, and we will not reverse unless fair-minded persons could not have reached the same conclusion when considering the same facts. Id. Questions concerning the credibility of witnesses and weight of evidence, as well as the probative value of any medical evidence, are for the Commission to decidé. Id. The Commission is not required to believe the testimony of the claimant or any other witnesses but may accept and translate into findings of fact only those portions of the testimony that it | adeems worthy of belief. Id. When the Commission denies benefits because the claimant failed to meet his burden of proof, the substantial-evidence standard of review requires us to affirm if the Commis sion’s decision displays a substantial basis for the denial of relief. Howell v. Scroll Techs., 343 Ark. 297, 35 S.W.3d 800 (2001).
The first issue on appeal concerns the denial of Cossey’s request for additional medical treatment in the form of pain management. Arkansas Code Annotated section ll-9-508(a) requires employers to provide medical services that are reasonably necessary in connection with the compensable injury. A claimant bears the burden to establish by a preponderance of the evidence that the treatment is reasonable and necessary and bears a causal connection to the work injury; it is a question of fact. Cole v. Commerce & Indus. Ins. Co., 2009 Ark. App. 617, 2009 WL 3153322. A claimant may be entitled to additional treatment after the healing period has ended if it is geared toward management of the compensable injury. Santillan v. Tyson Sales & Distribution, 2011 Ark. App. 634, 386 S.W.3d 566. Here, the question is focused on whether there is a causal connection between the 1993 injury and the present need for pain management treatment. We hold that substantial evidence supports the finding that Cossey failed to prove entitlement to additional medical treatment.
Our review of the evidence shows that Cossey, now in his mid-fifties, began working for Pepsi in the late 1970s. As a route driver, he sold soft drinks, loaded a truck, and stocked shelves, which required lifting, bending, and stooping. It was undisputed that in August 1993, when Cossey was in his mid-thirties, he was stocking a convenience store cooler with cases |4of Pepsi when he experienced a “pop” in his back and the onset of low back pain. It was also undisputed that Cossey had a history of intermittent lumbar pain.
Cossey at first saw the company doctor but then was referred to Dr. Standefer, a neurosurgeon. X-rays taken around the time of this work injury showed multilevel degenerative disc disease and some associated disc space narrowing, osteophyte formation, and focal disc protrusion in the lumbar levels. He had mild muscle spasms. It was a nonsurgical injury; he was treated with analgesic medication and muscle relaxers, as well as a work-hardening exercise plan to strengthen his low back.
By December 1993, a functional capacity evaluation indicated that Cossey was capable of light work with some lifting restrictions. His physician opined in January 1994 that Cossey needed to avoid heavy lifting and repeated bending and probably should consider vocational training or higher education to enter into a different kind of work. With his multilevel lumbar disc disease, Cossey was expected to have low back pain and intermittent lower-extremity pain. Although given narcotic medication in the beginning, Dr. Standefer wanted Cossey to take as little as possible of that medicine and wean himself off of it.
In May 1995, a follow up visit to the doctor showed substantial improvement in regard to pain in his low back. His physician prescribed a physical therapy regimen, massage therapy, and ultrasound therapy for about a month, although Cos-sey “feels that he is back to his baseline level of activity.” Cossey remained off work.
Cossey was the subject of surveillance in the summer of 1995, and he was observed repeatedly bending, working on his vehicle, carrying heavy objects, and weed-eating his yard. |sIn October 1995, Cossey followed up with his doctor where his condition was deemed unchanged from prior months, having “done reasonably well.” He was noted to be taking classes at Wes-tark. He was recommended to use over-the-counter anti-inflammatory medication and to be careful with lifting and bending. Dr. Standefer noted that prior radiographic studies showed “findings consistent with degenerative disc disease at multiple levels,” which was sufficiently severe “to account for his pain.” In January 1996, he. was assessed a ten-percent permanent partial impairment rating by Dr. Stande-fer.
Over the next several years, Cossey would return for a follow up examination with his physician, who consistently recommended conservative care for his nonsurgical low-back pain. The treatments included epidural steroid injections, exercise programs, and over-the-counter medications as needed. Another functional capacity evaluation in 2000 indicated that Cossey could perform light duty in a part time capacity. In 2002, Dr. Standefer opined that his chronic back pain was based on his underlying degenerative changes.
By June 2003, Cossey was seen for an independent medical evaluation by Dr. Knox. At that time, Cossey was forty-four years old. Dr. Knox gave Cossey an eleven-percent anatomical impairment rating. Intermittent steroid injections were given to Cossey in his lumbar spine. His primary physician opined in February 2007 that Cossey was not able to work in any capacity. This opinion did not change through 2009, although the pathology was noted to be long-standing degenerative disc disease.
Another independent medical review was done on Cossey in October 2009 by Dr. Calhoun. At that point, Cossey was fifty years old. Dr. Calhoun reviewed Cossey’s care |f,and treatment over the years for degenerative disc disease. Dr. Calhoun believed that Cossey would need chronic narcotics and other medications for his pain. Another physician saw Cossey in 2011, offering to provide non-narcotic conservative care for his chronic low back pain, but Cossey rejected that doctor’s care. In November 2012, Dr. Cannon saw Cossey for chronic pain, and Dr. Cannon prescribed narcotic and non-narcotic medications.
In October 2013, Cossey saw Dr. Mar-timbeau for yet another independent medical evaluation, who opined that Cossey had chronic low back pain “secondary to a multilevel degenerative osteoarthritis of the lumbosacral spine from Ll-2 to L5-S1.” When asked whether the current need for treatment was reasonable and medically necessary for his August 1993 injury, Dr. Martimbeau opined that all the treatment and diagnostic medications over the previous twenty years was related to the chronic degenerative condition and not the work-related strain of his lumbar spine. Dr. Martimbeau opined that none of the medications Cossey was currently taking were necessary for the original lumbar strain. Dr. Martimbeau later opined that Cossey should have been able to return to work in May 1995, albeit with no heavy lifting.
Cossey had not worked in twenty years, since his time with Pepsi. He received monthly social security disability benefits as well as retirement from Pépsi, totaling over $2500 per month. He had not looked anywhere for work since 1993, although he stated that he asked for a less strenuous job with Pepsi many years prior but was not offered one. He quit his college course work prior to completing a business degree. Cossey also admitted that he |7had a vehicle accident in 2008 that hurt his back; he settled that case for payment of his medical bills and $12,000.
Cossey filed a workers’ compensation claim for wage-loss benefits in excess of the eleven percent whole body impairment rating and for additional medical treatment to include pain management. Pepsi responded that it had paid all reasonable and necessary medical treatment related to the 1993 compensable injury, that if any treatment was needed it was causally related to a pre-existing and unrelated medical condition, and that no wage loss was warranted.
The Commission found that Cossey was at maximum medical improvement (“MMI”) in January 1996, when Cossey was first given an impairment rating. Despite his having reached MMI, the Commission noted, Pepsi continued to provide conservative care for years thereafter. The Commission found Dr. Martimbeau’s opinions were entitled to great weight in making its finding that appellant’s 1993 muscle strain had long since healed and did not require ongoing medical treatment. The Commission found that all the medical records were consistent in recognizing that appellant suffered a chronic, progressive, unrelated degenerative disease, which was the cause for the need for treatment. The question of reasonable and necessary treatment in relation to a compensable injury is a question of fact for the Commission to resolve, and we hold that there is substantial evidence of record to support the denial of additional medical treatment as not related to his 1993 work injury. Compare Walker v. United Cerebral Palsy of Ark., 2013 Ark. App. 153, 426 S.W.3d 539. We affirm the denial [sof additional medical treatment as not reasonably necessary in relation to the 1993 work injury.
This brings us to Cossey’s second point on appeal, where he contends that the Commission should have awarded him greater than twenty-five percent in wage-loss disability benefits, over and above his permanent partial impairment rating. Pepsi disagrees that any wage-loss benefits were warranted or proved by Cossey, cross-appealing that finding.
The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Wal-Mart Assoc., Inc. v. Keys, 2012 Ark. App. 559, 423 S.W.3d 683. 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. Id. The Commission is charged with the duty of determining disability based upon consideration of medical evidence and other factors affecting wage loss, such as the claimant’s age, education, work experience, motivation, post-injury income, demeanor, and credibility. Miller v. White Hall Sch. Dist., 2010 Ark. App. 460, 2010 WL 2195749.
Here, the Commission awarded Cossey twenty-five percent in wage-loss disability benefits, more than that awarded by the administrative law judge. The Commission recognized that Cossey was middle aged, had work experience primarily in the manual labor fields, but also noted that functional evaluations over the years showed his capacity to work in light duty with lifting restrictions. The Commission considered the evidence dating back to 1995 that appellant was observed performing strenuous yard work and other physical activities for his own purposes, and it deemed Cossey not credible in his assertion that helncould not attend college or sit or stand due to his 1993 work injury but was more likely disinterested in returning to any appropriate suitable employment.
Cossey contends that his compensable low-back injury suffered in 1993 has more seriously affected his present ability to earn a meaningful wage. Cossey specifically asserts that there is evidence of record to support a greater wage-loss disability award. On the other hand, Pepsi contends that Cossey is not wage disabled at all due to his 1993 work injury. This, as always, is a fact-intensive inquiry in which all the specific facts of this claimant’s age, abilities, education, physical and mental limitations, motivation, and demeanor and any other factor deemed relevant are to be considered. Ark.Code Ann. § ll-9-519(e). See also R.L. Landscaping v. Jones, 2010 Ark. App. 304, 374 S.W.3d 761; Maulding v. Price’s Utility Contractors, Inc., 2009 Ark. App. 776, 358 S.W.3d 915. Given this fact-intensive inquiry, and viewing the evidence in the light most favorable to the Commission’s decision as we must, we hold that reasonable minds could conclude that appellant was entitled to twenty-five percent wage-loss disability in excess of his permanent partial impairment. Compare Logan County v. McDonald, 90 Ark. App. 409, 206 S.W.3d 258 (2005).
Affirmed on direct appeal and on cross-appeal.
Kinard and Glover, JJ., agree.
. This was a divided opinion of the Commission. Accompanying the majority opinion, there. were two concurring-in-part-and-dissenting-in-part opinions. One Commissioner agreed that no additional medical treatment was warranted, but disagreed that any wage loss was warranted. Another Commissioner disagreed on the denial of additional medical care and asserted that the wage loss award was warranted and should have been seventy-five percent. Regardless, our court reviews the majority decision of the Commission. | [
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JOSEPHINE LINKER HART, Associate Justice
|]In 2007, a jury found appellant, Brandon Carter, guilty of two counts of aggravated robbery and one count of first-degree battery, and sentenced him to an aggregate sentence of 1200 months’ imprisonment. The Arkansas Court of Appeals affirmed the jury verdict and sentence. Carter v. State, 2010 Ark. App. 611, 2010 WL 3700813. Subsequently, Carter filed in the trial court a timely, verified pro se petition for postconvietion relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2007), asserting claims of ineffective assistance of counsel. The trial court denied Carter’s petition. Carter then filed a motion for modification or reconsideration of the trial court’s order, arguing that the trial court failed to provide the required rulings on each of the issues raised in the Rule 37.1 petition. Subsequently, Carter filed a timely notice of appeal of the order denying his petition. When the trial court did not rule on the motion, Carter filed a petition for writ of mandamus in which he asked this court to compel the trial court to rule on the motion. Holding that the trial court failed to make the required rulings on each of the ’ issues raised' in the Rule 37.1 petition and that Carter properly filed a motion |gto obtain these rulings, this court granted the petition for writ of mandamus and directed the trial court to act on appellant’s pending motion. Carter v. Chandler, 2012 Ark. 252, 2012 WL 1950250 (per curiam). In its order denying the motion for modification or reconsideration, the trial court addressed Carter’s claims that had not been addressed in the order denying postconviction relief. Carter has lodged this appeal; however, our review is limited to his appeal of the trial court’s original order denying his petition.
On appeal, Carter contends that the trial court erred in not granting his petition, arguing that counsel was remiss in failing to object when, two days before trial, the State filed a second amended information to add a count of aggravated robbery against a second victim, or to file a contin uance as a result of the amendment; that counsel should have moved to dismiss the second amended information' based on an apparent allegation of intentional delay by the prosecutor; and that reversible error occurred as a result of the trial court’s denial of his petition without a hearing.
|sThis court has held that it will reverse the trial court’s decision granting or denying postconviction relief only when that decision is clearly erroneous. Pankau v. State, 2013 Ark. 162, 2013 WL 1694909; Banks v. State, 2013 Ark. 147, 2013 WL 1491272. 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. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. Applying this standard of review, we hold that the trial court’s decision was not clearly erroneous in denying postconviction relief based on the claims addressed by the trial court in its order and raised by appellant on appeal.
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. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). There is a strong presumption that trial counsel’s conduct falls within the wide range of professional assistance, and an appellant has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable professional judgment. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55; McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per curiam). Second, the petitioner must show that counsel’s deficient performance so prejudiced petitioner’s defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462. A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel’s performance fell below an objective standard of reasonableness. Abernathy, 2012 Ark. 59, 386 S.W.3d 477. 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 er rors. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The language, “the outcome of the trial,” refers not only to the finding of guilt or innocence, but also to possible prejudice in sentencing. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. “[TJhere is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.
Carter was initially charged with one count of aggravated robbery against Travis lsYoung. The affidavit for warrant of arrest attached to the information stated that officers responded to a reported shooting and robbery at a laundromat owned by Travis and Inez Young, and they found Mr. Young with two gunshot wounds and Ms. Young with a grazing, wound. According to the affidavit, witnesses stated that three black males shot and robbed Travis and Inez Young before running from the laundromat. The information was subsequently amended to also charge Carter with first-degree battery against Mr. Young. Two days before trial, the State filed a second amended information charging appellant with an additional count of aggravated robbery as against Ms. Young.
As he did in his petition, Carter first contends on appeal that he received ineffective assistance based on the failure of counsel to challenge the filing of the second amended information two days before trial to add the count of aggravated robbery against Ms. Young, or to move for a continuance based on its filing. He ar- • gues that, in violation of Arkansas Code Annotated section 16-85-407 (Repl. 2005), the addition of the second aggravated-robbery charge twenty months after he was first charged with one count of aggravated robbery impermissibly changed the nature or degree of the offense, as well as created unfair surprise and impeded his ability to raise his defense. Carter summarily asserts that, because the affidavit |6only included allegations of a single robbery being planned and committed against one victim, Mr. Young, the timing of the filing of the second amended information resulted in a lack of time to prepare a defense against the additional count of aggravated robbery, a lack of time to investigate and interview Ms. Young, and the negation of his prepared trial defense. In its order denying postconviction relief, the trial court found that counsel was not ineffective on this basis. Referring to the facts alleged in the affidavit for warrant of arrest, the trial court concluded that, because Carter was aware from the outset that the State was contending that there were two victims in the case, there was no surprise or change in the nature or degree of the charges based on the filing of the second amended information to support a motion to quash or for a continuance.
The State is entitled to amend ' an information at any time prior to the case being submitted to the jury as long as the amendment does not change the nature or the degree of the offense charged or create an unfair surprise. Dodge v. State, 2014 Ark. 116, 2014 WL 1096135 (per curiam); Green v. State, 2012 Ark. 19, 386 S.W.3d 413; see also Ark.Code Ann. § 16 — 85—40T(b) (Repl. 2005) (“However, no indictment shall be amended nor bill of particulars filed so as to change the nature of the crime charged or the degree of the crime charged.”). Section 16-85-407 17provides a defendant with protection against being prejudiced through surprise by the filing of an amended information. Hoover v. State, 353 Ark. 424, 108 S.W.3d 618 (2003). Even where there is a change in the nature or degree of the offense, this court will analyze whether there was adequate notice and whether the defendant was prejudiced. Id. Where an amendment misleads or impedes a defendant in making a defense, a motion to quash under section 16-85-407 may be proper. Id.
Here, with regard to counsel’s decision not to move to quash the second amended information or for a continuance, Carter fails to overcome the presumption that counsel was effective under the Strickland standard. While Carter asserts on appeal as he did in his petition that counsel was remiss in not challenging the second amended information based on a change in the nature or the degree of the offense and unfair surprise, he fails to properly provide any factual substantiation for his conclusory claims. Unsubstantiated conclusions do not demonstrate under Strickland that there was any basis for a finding of ineffective assistance of counsel. Nelson v. State, 2014 Ark. 28, 2014 WL 260988 (per curiam). To prevail under Strickland, Carter was [ ^required to establish with facts that counsel made some error so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. See Nelson, 2014 Ark. 28, 2014 WL 260988; see also Abernathy, 2012 Ark. 59, 386 S.W.3d 477. As described herein, the affidavit filed in support of the original information specifically referred to Travis and Inez Young as victims, stating that witnesses saw three black males shoot and rob both Travis and Inez Young. Carter does not demonstrate how the addition of the second charge of aggravated robbery as against Ms. Young impeded his ability to prepare his defense to support a finding that counsel was ineffective under the Strickland test. Further, to meet the second prong of the Strickland test, an appellant must do more than allege prejudice; he must demonstrate it with facts. Stiggers v. State, 2014 Ark. 184, 433 S.W.3d 252. Carter did not meet his burden of stating facts that affirmatively supported his claims of prejudice; accordingly, the trial court did not err in denying relief. See Thacker v. State, 2012 Ark. 205, 2012 WL 1631782 (per curiam); Jones v. State, 2011 Ark. 523, 2011 WL 6091468 (per curiam); Payton v. State, 2011 Ark. 217, 2011 WL 1805340 (per curiam).
In a related claim, Carter seems to allege that counsel was remiss in failing to argue that the information should be dismissed because the prosecutor intentionally delayed charging him with the second count of aggravated robbery to obtain a tactical advantage, in violation of Arkansas Constitution, amendment 21, section 1. As stated herein, 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 |9not warrant granting postconviction relief. Anthony, 2014 Ark. 195, 2014 WL 1716538; Abernathy, 2012 Ark. 59, 386 S.W.3d 477. Here, Carter’s argument based on intentional delay by the prosecutor is limited to a con-clusory allegation, and he fails to provide any facts to support his claim.
Finally, Carter contends in his brief that it was reversible error for the trial court to deny his petition without a hearing when it “failed to conclusively show by the record” that he was not entitled to relief and did not specify in the order which parts of the record it relied on in denying the petition. It appears that Carter is basing this claim on the trial court’s denial of his motion for modification or reconsideration. However, in that order, the trial court addressed the issues omitted from the original order, and Carter does not allege that the trial court failed to address any particular claims in his petition. Arkansas Rule of Criminal Procedure 37.3 (2007) provides that an evi-dentiary hearing should be held in a post-conviction proceeding unless the files and record of the case conclusively show that the prisoner is entitled to no relief. Lemaster v. State, 2013 Ark. 449, 2013 WL 5968938 (per curiam); Eason v. State, 2011 Ark. 352, 2011 WL 4092485 (per curiam); Hayes v. State, 2011 Ark. 327, 383 S.W.3d 824 (per curiam). When it dismisses a Rule 37.1 petition without an evidentiary hearing, the trial court “shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court’s findings.” Ark. R.Crim. P. 37.3(a); see Eason, 2011 Ark. 352, 2011 WL 4092485. Our |inreview of the order denying postconviction relief, as supplemented by the order denying motion for modification or reconsideration, shows that, in compliance with Rule 37.3, the trial court made the requisite written findings in addressing each of the claims raised in the petition.
Affirmed.
. Because Carter did not amend his notice of appeal after the trial court’s entry of the order denying the motion for modification or reconsideration he cannot appeal the trial court's findings as to any issues addressed by the trial court for the first time in that order. In our per curiam order, this court directed that Carter’s notice of appeal be treated as having been filed the day after the trial court's modified order was entered. However, pursuant to Lewis v. State, 2012 Ark. 255, 423 S.W.3d 16 (per curiam), Carter was still required to amend his notice of appeal to include the modified order within the period of time permitted for filing the notice of appeal. He did not amend his notice of appeal to include the modified order; therefore, we cannot address Carter’s argument on appeal that counsel was ineffective based on the failure to raise a double-jeopardy claim because that issue was addressed only by the trial court’s order denying the motion for modification or reconsideration.
. We do not address the allegation in the petition that counsel was ineffective based on the failure to renew the motion for directed verdict. All arguments made below but not raised on appeal are abandoned. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam); Shipman v. State, 2010 Ark. 499, 2010 WL 5185781 (per curiam) (citing State v. Grisby, 370 Ark. 66, 257 S.W.3d 104 (2007)).
. To the extent that Carter is alleging that the unfair surprise was due to counsel’s failure to inform him of the amendment until the morning of trial rather than as a result of the State’s filing of the amendment two days before trial, he makes no convincing argument and provides no factual substantiation for the allegation that the defense was prejudiced by any alleged delay of counsel in informing him of the amendment. 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 postconviction relief. Anthony v. State, 2014 Ark. 195, 2014 WL 1716538 (per curiam); Abernathy, 2012 Ark. 59, 386 S.W.3d 477.
. In support of his claim on appeal that a continuance was necessary to allow counsel time to interview Ms. Young and investigate the second count of aggravated robbery, Carter also alleges that counsel was not aware until after the trial had begun that appellant did not shoot Ms. Young as part of an effort to commit theft against her but, instead, shot her as she was going to get a gun that was kept at the washateria when she saw appellant shooting at Mr. Young. However, Carter does not provide any support for the allegation that counsel had not interviewed Ms. Young and was not aware of the details of the incident prior to trial.
. On appeal, Carter goes beyond the claims raised in his petition by providing additional allegations and information to shore up the conclusory allegations in the petition that counsel was ineffective for failing to file a motion to quash or for a continuance. As the trial court did not have the additional information when it ruled on the Rule 37.1 petition, Carter is not permitted to bolster the claims with additional allegations and argument provided for the first time on appeal. Because an appeal from an order denying postconviction relief is the review of the decision made by the trial court based on the petition before it, an appellant in a Rule 37.1 proceeding is limited to the scope and nature of his arguments below, and he cannot raise new arguments on appeal or add factual substantiation to the allegations made below. Thornton v. State, 2014 Ark. 113, 2014 WL 1096263 (per curiam); see Bryant v. State, 2013 Ark. 305, 429 S.W.3d 193 (per curiam); Hogan v. State, 2013 Ark. 223, 2013 WL 2295431 (per curiam).
. Carter also seems to argue for the first time on appeal that the two counts of aggravated robbery were improperly joined based on the resulting confusion of the jury. This claim will not be considered as it is being raised for the first time on appeal. Arguments raised for the first time on appeal could not have been considered by the trial court and will not be addressed by this court. Pollard v. State, 2014 Ark. 226, 2014 WL 2019296 (per curiam).
. While this court stated in Carter, 2012 Ark. 252, 2012 WL 1950250, that an evidentiary hearing had been held in this matter, it appears from the record before us that a hearing was not held. | [
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RAYMOND R. ABRAMSON, Judge
|! This is an appeal from the dismissal of a declaratory-judgment claim. On appeal, Farmers Insurance Exchange (“Farmers”) argues that the circuit court erred when it declared that Ray and Lanna Bradford’s homeowner’s insurance policy with Farmers covered an accident involving a boom lift. We affirm.
Ray has a business of maintaining parking lots. In that business, Ray often changes light bulbs in light fixtures located on the lots, and to help him with this task, he purchased a JLG Model 450 articulated boom lift (“boom lift”). A boom lift is a machine that elevates a platform. In this case, the boom lift can reach up to forty-five feet, and the platform’s capacity is 500 pounds. It has a motor, four tires, and can be steered. It moves less than 4.5 miles per hour.
|20n October 2, 2010, Ray and his brother, Jason Bradford, were using the boom lift at Ray and Lanna’s residence when the boom lift tipped over and Jason was injured. In response to the accident, a claim was filed under Ray and Lanna’s homeowner’s insurance policy issued by Farmers. Farmers then filed a declaratory-judgment complaint in the Independence County Circuit Court, asserting that Jason’s injury was excluded from coverage because the boom lift came within the policy exclusion regarding injuries sustained in the operation or use of motor vehicles. Ray and Lanna answered, denying that the policy exclusion applied. Jason also answered, denying that the exclusion applied and filing a counterclaim against Farmers.
The relevant sections of Ray and Lan-na’s policy with Farmers state:
DEFINITIONS
17. Motor vehicle — means:
a. any self-propelled vehicle or any self-propelled machine, whether operable or not, which is designed for movement on land or on land and in water, including by way of example but not limited to any type of automobile, hovercraft, or air cushion vehicle;
b. parts, equipment, machinery, furnishings or accessories attached to or located in or upon such vehicle or machine described in subsection a. above; and
c. any trailer or semi-trailer which is being carried on, towed by, or hitched for towing by a vehicle or machine described in subsection a. above
SECTION II — LIABILITY EXCLUSIONS
15. Aircraft, motor vehicles, or watercraft. We do not cover bodily injury, property damage or personal injury arising from, during the course of or in connection with the ownership, maintenance, operation, use, occupancy, loading, or unloading, moving or movement, or entry or exit of any:
|sb. motor vehicle;
However, this exclusion does not apply to:
(1) a motorized golf cart not subject ' to motor vehicle registration:
i. while on the golf course and used for golfing purposes, or
ii. while in a private residential community, including its public roads upon which a motorized golf cart can legally travel, which is subject to the authority of a property owners association and contains the residence premises;
(2) lawn, garden or farm equipment principally used on the residence premises;
(8) recreational vehicles not subject to motor vehicle registration that are only used on the residence premises, including by way of example, all terrain vehicles;
(4) any watercraft, camper, home or utility trailer not being towed by, attached to or carried on a motor vehicle; or
(5) a motorized assisted living device designed to assist the disabled.
The case proceeded to a bench trial on August 1, 2013, where the relevant facts were not disputed. Following the trial, on October 18, 2013, the circuit court entered a judgment, declaring that the motor-vehicle exclusion did not apply to the boom lift and dismissing Farmers’s complaint with prejudice. Specifically, the judgment stated:
[T]he [cjourt finds, for the reasons articulated by Defendant Jason Bradford in his trial brief, that the motor vehicle exclusion is inapplicable to the occurrence described herein and therefore [Farmersj’s petition for declaratory judgment exonerating it from the duty to defend or indemnify Ray Bradford as regards any claims of Jason Bradford, should be and hereby is denied and [Farmersj’s petition should be and hereby is dismissed with prejudice.
In his trial brief, Jason argued that the term “vehicle” in the Farmers policy is ambiguous. He further cited statutory and dictionary definitions of “vehicle” and asserted that the boom lift did not fit those definitions.
DFarmers then filed a motion to reconsider or for a new trial. Farmers attached to its motion a tort complaint filed, by Jason against Ray in September 2013. The complaint alleged that Ray “caused the machine to move forward. After moving a few feet, the [boom lift] toppled over.” The complaint further alleged that Ray’s negligence caused “the machine to move when the boom was in a position above horizontal.” The circuit court denied Farmers’s motion to reconsider or for a new trial. Farmers filed a notice of appeal.
On .October 8, 2014, this court dismissed Farmers’s appeal for lack of a final order because the circuit-court order dismissing the declaratory judgment did not dispose of Jason’s counterclaim. See Farmers Ins. Exch. v. Bradford, 2014 Ark. App. 537, 2014 WL 5035118. Following our dismissal, on November 7, 2014, the circuit court entered an order dismissing Jason’s counterclaim as moot. Farmers then filed a second notice of appeal on November 13, 2014. On appeal, Farmers asserts that the circuit court erred when it found that the motor-vehicle exclusion did not apply to the boom lift.
In bench trials, the standard of review on appeal is whether the circuit court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Benefit Bank v. Rogers, 2012 Ark. 419, 424 S.W.3d 812. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Primus Auto. Fin. Servs., Inc. v. Wilburn, 2013 Ark. 258, 428 S.W.3d 480. However, we review questions of law de novo. Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21. Therefore, we review the circuit court’s factual findings for clear error and its interpretation of the law de novo. Robinson v. Villines, 2009 Ark. 632, 362 S.W.3d 870.
Our law regarding the construction of insurance contracts is well settled. McGrew v. Farm Bureau Mut. Ins. Co., 371 Ark. 567, 268 S.W.3d 890 (2007); Elam v. First Unum Life Ins. Co., 346 Ark. 291, 57 S.W.3d 165 (2001). The language in an insurance policy is to be construed in its plain, ordinary, and popular sense. Norris v. State Farm Fire & Cas. Co., 341 Ark. 360, 16 S.W.3d 242 (2000). Different clauses of an insurance contract must be read together and the contract construed so that all of its parts harmonize. Philadelphia Indem. Ins. Co. v. Austin, 2011 Ark. 283, 383 S.W.3d 815.
Exclusionary endorsements must adhere to the general requirements that the insurance terms must be expressed in clear and unambiguous language. McGrew, 371 Ark. 567, 268 S.W.3d 890. If a provision is unambiguous, and only one reasonable interpretation is possible, this court will give effect to the plain language of the policy without resorting to the rules of construction. Id. If, however, the policy language is ambiguous, and thus susceptible to more than one reasonable interpretation, we will construe the policy liberally in favor of the insured and strictly against the insurer. Id. Our supreme court has applied the rule of construction of noscitur a sociis when interpreting language in an insurance policy. See Union Bankers Ins. Co. v. Nat’l Bank of Commerce of Pine Bluff, 241 Ark. 554, 408 S.W.2d 898 (1966). Noscitur a sociis in “literal translation means ‘it is known from its associates’ and in practical application means that a word may be defined by an accompanying word.” Weldon v. Sw. Bell Tele. Co., 271 Ark. 145, 146, 607 S.W.2d 395, 396 (1980).
| Jn this case, Farmers argues that the circuit court erred in finding that the motor vehicle exclusion did not apply to the boom lift because, in making its decision, the court relied upon various statutory and dictionary definitions of motor vehicle. ' Farmers asserts that the circuit court should have relied solely upon the policy definition of motor vehicle, and had it done so and given the definition’s words their ordinary meaning, then the court should have found that the motor-vehicle exclusion applies to the boom lift.
Farmers’s argument that the circuit court should not have relied on statutory and dictionary definitions of motor vehicle has merit. In Nationwide Mut. Ins. Co. v. Worthey, our supreme court noted that when an insurance policy includes a definition, the policy definition controls the court’s analysis. 314 Ark. 185, 861 S.W.2d 307 (1993) (citing Enter prise Tools, Inc. v. Export-Import Bank, 799 F.2d 437 (8th Cir. 1986) (holding that where a term is defined in the policy, the court is bound by the policy definition)).
However, any reliance on those definitions by the circuit court does not warrant reversal in this case because the motor-vehicle definition in the Farmers policy is ambiguous. The Farmers policy defines motor vehicle as “any self-propelled vehicle or any self-propelled machine, whether operable or not, which is designed for movement on land or on land and in water, including by way of example but not limited to any type of automobile, hovercraft, or air cushion vehicle.” This definition lends itself to more than one reasonable interpretation.1 |7Specifically, one can read the definition to exclude all self-propelled vehicles and machines that are designed for a means of conveyance. The definition’s examples — automobile, hovercraft, and air-cushion vehicle — suggest this interpretation. Or, as Farmers claims, the definition can be read to exclude any self-propelled vehicle and machine that can move on land or on land and in water.
Because an ambiguity exists in the Farmers policy, we must apply the interpretation that favors the insured in these circumstances, and in doing so, agree with the circuit court that the motor-vehicle exclusion did not apply to the boom lift. Accordingly, we affirm the circuit court’s decision. While we recognize that the circuit court decided this case on a different theory, this court sustains a circuit court’s ruling when it reached the right result. Bushong v. Garman, Co., 311 Ark. 228, 843 S.W.2d 807 (1992).
Affirmed.
Gladwin, C.J., and Harrison, J., agree.
. Farmers also argued that Jason’s injury was excluded because the accident occurred in connection with Ray’s business. However, Farmers abandons that argument on appeal.
. The parties disputed the reason why Jason and Ray were using the boom lift at the time of the accident. However, they agree this disputed fact is not relevant to the issue on appeal.
. Farmers assumes that the circuit court relied on statutory and dictionary definitions because in the judgment the court stated that it made its decision "for the reasons articulated by [Jason] in his trial brief,” and Jason's trial brief cites statutory and dictionary definitions of "vehicle.” | [
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PER CURIAM
|,In 1985, appellant Kenny Halfacre was found guilty in the Pulaski County Circuit Court of aggravated robbery and sentenced as a habitual offender to forty years’ imprisonment in case number 60CR-85-1577. We affirmed. Halfacre v. State, 292 Ark. 331, 731 S.W.2d 179 (1987). Subsequently, pursuant to Arkansas Rule of Criminal Procedure 37.1 (1987), we re-dhced the sentence to twenty years’ imprisonment because one of the prior judgments used to establish that appellant was a habitual offender had been reversed on ' appeal by the Arkansas Court of Appeals. Halfacre v. State, CR-86-183, 1987 WL 19616 (Ark. Nov. 9, 1987) (unpublished per curiam).
In 1986, appellant was found guilty in thé Pulaski County Circuit Court in case number 60CR-85-1579 of a separate robbery for which he was sentenced as a habitual offender to life imprisonment. We also affirmed that judgment. Halfacre v. State, 292 Ark. 329, 731 S.W.2d 182 (1987).
In 2014, appellant filed in the trial court a pro se petition to correct sentence pursuant to Arkansas Code Annotated section 16-90-111 (Repl. 2006), alleging that the sentence of life |2imprisonment was illegal on its face. Noting that life imprisonment under Arkansas law does not allow for release on parole, appellant argued that the applicable sentencing statutes did not provide for a life sentence with no possibility of parole for aggravated robbery. He further alleged that the life sentence should not have been imposed because one of the prior offenses used to establish his habitual-offender status should not have been considered because it was not committed with a deadly weapon. With respect to the sentence of forty years’ imprisonment, appellant argued that the sentence was facially invalid because the sentence was later reduced to twenty years’ imprisonment, but the judgment was never modified to reflect the reduction in sentence. The trial court denied the petition, and appellant brings this appeal. Appellant repeats the claims raised in the petition in his brief-in-chief. A trial court’s decision to deny relief under section 16-90-111 will not be overturned unless that decision is clearly erroneous. Gilliland v. State, 2014 Ark. 149, 2014 WL 1344405.
The trial court denied the petition on the ground that it was not timely filed, and the State urges this court to affirm the order for that reason. We affirm the order, not because the petition was untimely, but because appellant did not demonstrate in the petition that the sentence in either case was illegal. A claim that a sentence is illegal on its face presents an issue of subject-matter jurisdiction that can be addressed at any time under section 16-90-111(a). Atkins v. State, 2014 Ark. 393, 441 S.W.3d 19 (per curiam). While the time limitations on filing a petition under section 16-90-lll(a)(b)(l) on the grounds that the sentence was imposed in an ^illegal manner were superseded by' Arkansas Rule of Criminal Procedure 37.2(c), the portion of section 16-90-111 that provides a means to challenge a sentence at any time on the ground that the sentence is illegal on its face remains in effect. See Reeves v. State, 339 Ark. 304, 5 S.W.3d 41 (1999). For that reason, the trial court had authority to grant relief under the statute if a sentence imposed on appellant was indeed illegal. Hill v. State, 2013 Ark. 291, 2013 WL 3326790 (per curiam).
In both cases, appellant was found guilty of violating Arkansas Statutes Annotated section 41-2102 (Supp. 1985), which is now codified at Arkansas Code Annotated section 5-12-103 (Repl. 2013). At the time appellant committed the offenses, aggravated robbery was a Class Y felony under Arkansas Statutes Annotated section 41-2102(2) (Supp. 1985) and was punishable by a term of imprisonment of not less than ten years nor more than forty years, or life. See Ark. Stat. Ann. § 41-901 (Supp. 1985). Accordingly, the life sentence and the forty-year sentence imposed on appellant in 1987 were within the range allowed by statute and were not facially illegal. Sentencing in Arkansas is entirely a matter of statute. Gray v. State, 2014 Ark. 417, 443 S.W.3d 545 (per curiam). No sentence shall be imposed other than as prescribed by statute. At kins, 2014 Ark. 393, 441 S.W.3d 19. A void or illegal sentence is one that is illegal on its face. Lovelace v. State, 301 Ark. 519, 785 S.W.2d 212 (1990); Fritts v. State, 298 Ark. 533, 768 S.W.2d 541 (1989). A sentence is illegal on its face when it exceeds the statutory maximum for the offense for which the defendant was convicted. Atkins, 2014 Ark. 393, 441 S.W.3d 19. If a sentence is within the limits set by statute, it is legal. Grissom v. State, 2013 Ark. 417, 2013 WL 5775663 (per curiam).
The parole-eligibility statute then in effect stated that “individuals sentenced to life imprisonment prior to March 1, 1968, and those sentenced to life imprisonment after the ^effective date [February 12, 1969] of this Act, shall not be eligible for release on parole unless such sentence is commuted to a term of years by executive clemency.” Id. § 43-2807(b)(l). Recently, in Hobbs v. Turner, 2014 Ark. 19, at 7, 431 S.W.3d 283, 287, we explained that “generally, in Arkansas, life means life,” and with few exceptions, “the legislature has not provided for a sentence of life with the possibility of parole in over forty years.” Thus, the court lacked the authority to sentence appellant to a term of life with the possibility of parole. See Hale v. Hobbs, 2014 Ark. 405, 443 S.W.3d 533; see also Mayfield v. State, 293 Ark. 216, 736 S.W.2d 12 (1987).
As to whether appellant was properly determined to be a habitual offender at the time of trial, any claim appellant desired to raise concerning his status as a habitual offender could have been addressed at trial and on direct appeal or, if applicable, in a timely petition for postcon-viction relief. Whether a particular prior judgment of conviction was correctly considered for the purposes of determining whether appellant was a habitual offender was not an issue sufficient to render the sentence in either case facially illegal. Peterson v. State, 317 Ark. 151, 876 S.W.2d 261 (1994).
With respect to the forty-year sentence imposed on appellant that was reduced under Rule 37.1, even if there had been some failure to amend the judgment in the case, appellant did not establish that the sentence was subject to challenge under section 16-90-111 on the basis of facial invalidity.
Inasmuch as appellant did not state a ground for relief under the statute, we affirm the trial court’s order. While the court erred in its reasoning, the court’s judgment should be | ^affirmed as teaching the right result for the wrong reason. Davis v. State, 367 Ark. 330, 338, 240 S.W.3d 115, 122 (2006) (citing Harris v. City of Fort Smith, 366 Ark. 277, 234 S.W.3d 875 (2006)).
Affirmed.
. At the time appellant was convicted in 1987, the statute was codified at Arkansas Statutes Annotated section 43-2314 (Supp. 1985). | [
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Wendell L. Griffen, Judge.
This is the second appeal in a suit by Willie Lee Hill (Appellant) to recover medical expenses from her insurer, State Farm (Appellee), resulting from an automobile accident. The first trial resulted in a directed verdict for appellant. We reversed the trial court’s decision and remanded the case for retrial. Appellant now appeals from a defense verdict following the retrial, and argues that the trial court erred when it allowed a chiropractor to testify as an expert in radiology. We agree; therefore, we reverse and remand for a third trial.
Appellant was involved in a car accident on December 9, 1989, and was treated by Dr. Michael Courtney, a doctor of chiropractic, from December 18, 1989, until September 21, 1990. Testimony at the second trial revealed that appellant complained of a sore head, neck, and back. Dr. Courtney treated appellant 117 times during that period. He diagnosed appellant as having multiple cervical subluxations (segmental dysfunctions) and subluxation of the lumbar spine, and he testified that this diagnosis was corroborated by the physical exam. The maximum amount payable under the insurance policy for care and treatment of injuries from an accident is $5,000.00. Appellee had previously paid $1,404.00, but appellant sought an additional $3,665.00 to pay Dr. Courtney the remainder due for his services. Appellee refused payment, contending that it was not reasonable and necessary, and at the jury trial presented expert opinion testimony from Dr. Melvin Rose, a chiropractor from Illinois.
Dr. Rose testified that in his opinion the length of appellant’s treatment was excessive. He also disagreed with Dr. Courtney’s interpretation of the appellant’s x-rays. Counsel for appellee attempted to elicit testimony from Dr. Rose regarding whether a medical radiologist would interpret appellant’s x-ray studies as demonstrating a subluxation. Appellant objected, arguing that Dr. Rose was not qualified to express an opinion on that issue because he was not a medical radiologist. The trial court overruled appellant’s objection; Dr. Rose then testified that a medical radiologist would not read appellant’s x-rays to show multiple subluxations as reported by Dr. Courtney. At the close of all evidence, the jury rendered a verdict for State Farm from which appellant has appealed. She contends that the trial court erred when it overruled her objection to Dr. Rose’s opinion about what a medical radiologist would have concluded regarding the existence or nonexistence of subluxations based upon the x-rays interpreted by Dr. Courtney.
The qualification of an expert witness is within the sound discretion of the trial court and will not be reversed absent abuse of discretion. Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994). Questions concerning the qualification of a witness or admissibility of evidence are preliminary questions that are determined by the court. Ark. R. Evid. 104(a). A witness who is qualified as an expert by knowledge, skill, experience, training, or education may provide opinion testimony at trial, if it will assist the trier of fact in understanding the evidence or to determine a fact in issue. Ark. R. Evid. 702. While the trial court has discretion to qualify an expert witness, that discretion is not absolute. Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991). We see no error in the trial court’s decision to permit Dr. Rose to testify about his understanding of the distinction in the meaning of “subluxation” as that term is used by practitioners of chiropractic and medical doctors. However, there was no evidentiary foundation for him to render an opinion on how a medical radiologist would have interpreted Hill’s x-rays. There was no proof that Dr. Rose possessed any knowledge, skill, experience, training, or education in medical radiology.
Dr. Rose testified that while he was not certified in radiology, he has had postgraduate studies in, among other things, chiropractic roentgenology. Dr. Rose was allowed to testify, over appellant’s objection, that a radiologist or other medical physician would define a “subluxation” as a “very significant bone that is. . . out of place to a rather significant degree,” where a chiropractor would define “subluxation” as “something more dynamic,” such as a “locking up of the bone.” Dr. Rose also testified that if a radiologist reviewed appellant’s x-rays, he/she would not have found any subluxations. We acknowledge that if there is a reasonable basis to find that the witness has knowledge of a subject beyond that of ordinary knowledge, then the witness may be qualified as an expert. Poyner v. State, 288 Ark. 402, 705 S.W.2d 882 (1986). However, if a proper foundation is not laid, the witness should not be allowed to testify as an expert. Hardy v. Bates, 291 Ark. 606, 727 S.W.2d 373 (1987).
In Hardy, a chiropractor was prohibited from discussing whether a victim had suffered from permanent bodily impairment where a proper foundation had not been laid to show that he had specialized knowledge in that field. On appeal, the supreme court held that while a chiropractor is competent to testify concerning matters within the scope of profession and practice of chiropractic, the trial judge did not abuse his discretion in prohibiting the chiropractor from testifying as to whether an automobile accident victim had suffered any permanent bodily impairment, as the proper foundation had not been laid to show the scope of the chiropractic’s field. Hardy, 291 Ark. at 608, 727 S.W.2d at 373. The general rule concerning expert medical testimony by chiropractors limits the testimony to matters within the scope of the profession and practice of chiropractic. Id.
The trial court in this case allowed Dr. Rose to testify regarding how a radiologist would define “subluxation” and how a radiologist would interpret appellant’s x-rays. However, there was no evidence that he was competent regarding medical radiology through training, knowledge, formal education, or other experience. We do not know how much weight was given to this testimony and, therefore, cannot consider this error harmless. Thus, we reverse on this issue, as it is dispositive of the entire case, and remand for a third trial.
Reversed and remanded.
Jennings and Bird, JJ., agree. | [
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Donald L. Corbin, Chief Judge.
James Williams appeals an order of the Union County Circuit Court granting summary judgment to appellee in appellant’s declaratory judgment action. We affirm.
In 1979, appellee issued a policy of disability insurance to Texas Eastern Transmission Corporation, appellant’s employer; appellant became disabled and began to collect benefits under the policy in 1979. After a period of time, appellant executed a promissory note to appellee in the principal sum of $6,117.38 for repayment of amounts overpaid to appellant. The note, dated December 1, 1982, provided:
Connecticut General Life Insurance Company is presently obligated to J. H. Williams for monthly disability benefits in the sum of $122.70 under the terms and conditions of Policy No. 0376215 on January 1,1983, and each month thereafter. This monthly sum will be retained by Connecticut General Life Insurance Company on January 1, 1983, and each month thereafter as monthly payment of principal and interest on the obligation evidenced by this promissory note, and like payments will continue monthly on the first day of each month thereafter until the entire indebtedness of this promissory note has been paid.
The note also provided that, “[i]n the event that J. H. Williams shall cease to be entitled to monthly benefits under the terms of the aforementioned policy, payment of principal and interest will commence directly from J. H. Williams in an amount not less than $122.70, until the entire indebtedness has been paid.”
In 1983, appellee filed a complaint against appellant in the Lafayette County Circuit Court on the promissory note. The complaint recited that the appellant was indebted to appellee in the amount stated on the note, a copy of which was attached to the complaint, and demanded payment. Appellant did not defend or appear in that lawsuit, and a default judgment was rendered against him for the face amount of the note plus interest, attorney’s fees, and costs. The complaint in that action did not state that appellant was not disabled or was not entitled to benefits under the policy, and the court made no such finding in the default judgment.
In 1986, appellant brought this action against appellee for a declaratory judgment “to determine the rights of the [appellant] and the [appellee] under a contract of insurance issued by [appellee].” After appellee filed an answer and the parties engaged in discovery, appellee filed a motion for summary judgment on the ground that the complaint was barred by the doctrine of res judicata. An order was entered by the Union County Circuit Court in 1987 granting summary judgment to appellee.
Appellant argues that his claim is not barred by res judicata. We disagree. If claims that were made or could have been made grew out of the same transaction, and if the forum has jurisdiction of the person and subject matter and the parties are the same, the doctrine of res judicata may be applied. McDaniel Bros. Constr. Co. v. Simmons First Bank of Jonesboro, 24 Ark. App. 106, 749 S.W.2d 348 (1988). The doctrine of res judicata applies not only to those issues which have actually been tried, but also to those which could have and therefore should have been determined in the one action. Swofford v. Stafford, 295 Ark. 433, 748 S.W.2d 660 (1988). In order for the doctrine of res judicata to apply, it must appear that the particular matter was raised and determined or was necessarily within the issues and might have been litigated in the previous action. Talbot v. Jansen, 294 Ark. 537, 744 S.W.2d 723 (1988).
A judgment by default is just as binding and forceful as a judgment entered after a trial on the merits in a case; and it is not to be discredited or regarded lightly because of the manner in which it was acquired. A default judgment determines a plaintiffs right to recover and a defendant’s liability just as any conventional judgment or decree.
Meisch v. Brady, 270 Ark. 652, 658, 606 S.W.2d 112, 114 (Ark. App. 1980). A defense not presented before the entry of a default decree is barred by the doctrine of res judicata. Lewis v. Bank of Kensett, 220 Ark. 273, 247 S.W.2d 354 (1952).
Appellant’s disability was necessarily within the issues presented by the 1983 action on the promissory note; by failing to respond to appellee’s complaint in the action on the note, appellant admitted that he was no longer disabled, and that issue is barred by res judicata.
Affirmed.
Cooper and Cracraft, JJ., agree. | [
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George K. Cracraft, Judge.
Donald Camp appeals from his conviction of the offense of operating a motor vehicle while intoxicated, second offense, and operating a vehicle while his driver’s license was suspended. He contends the trial court erred in not suppressing evidence obtained by police officers at the time of his stop and arrest. We find no error and affirm.
The facts are not in dispute. On the afternoon of March 20, 1987, the Arkansas State Police established a roadblock at the intersection of two state highways for the purpose of checking driver’s licenses and vehicle registrations of the persons using those highways. There was no evidence that the roadblock was established for any other purpose or as a pretense for seeking evidence of other criminal activity. All vehicles passing through the roadblock were required to stop long enough for the officers to accomplish the purpose for which the roadblock had been established. When the appellant was stopped at this roadblock, the officers had no reason to suspect that he had violated any law or was engaged in any unlawful activity.
When the officers asked appellant for his driver’s license, he responded that his license had been suspended. While the officers were talking to him, appellant continued to drink from an open can of beer which he was holding at the time he was stopped. The officers concluded from their observations of him that he was also intoxicated. A breathalyzer test subsequently confirmed that conclusion.
Appellant was tried for and convicted of both offenses. He appeals solely on the ground that the stop of his vehicle, without reasonable suspicion that he was involved in criminal activity, violated his rights under the Fourth Amendment to the United States Constitution, and that the trial court erred in not suppressing all evidence obtained as a result of that stop. We disagree.
The validity of arrests based on vehicle stops made on less than reasonable suspicion of criminal activity has been addressed by the Supreme Court of the United States on at least four occasions. See Brown v. Texas, 443 U.S. 47 (1979); Delaware v. Prouse, 440 U.S. 648 (1979); United States v. Martinez-Fuerte, 428 U.S. 543 (1976); United States v. Brignoni-Ponce, 422 U.S. 873 (1975). Although none of these cases are directly on point factually, their declarations do furnish guidance. They declare that Fourth Amendment rights are implicated in such stops because the detention of a vehicle’s occupants constitutes a seizure within the meaning of that amendment. They point out, however, that not all seizures are prohibited — only unreasonable ones. Therefore, the permissibility of stops on less than reasonable suspicion must be judged in each case by balancing the effect of its intrusion on the individual’s Fourth Amendment rights against the promotion of a legitimate government interest.
In Brignoni-Ponce, the court had occasion to review the admissibility of evidence obtained as the result of an arrest made by border patrol officers who were authorized by their superiors to stop vehicles in an area near the Mexican border in order to determine if the occupants were legal residents. Under this system, the stops were made at random, and officers in the field had unbridled discretion as to which vehicles to stop and the places at which to stop them. The Court held that, although the control of illegal aliens was an important governmental interest, the intrusion on Fourth Amendment rights of the individuals outweighed the legitimate interest the government sought to promote. The Court relied heavily on the lack of any supervision of the individual officers in the field and their unbridled discretion to stop vehicles at random where there were less intrusive methods for detecting vehicles which might contain illegal aliens.
In Martinez-Fuerte, supra, the Court again reviewed the policy of the border patrol to control illegal entry by establishing permanent checkpoints at which all vehicles crossing that point were stopped to determine if the occupants were residents. The Court there held that these systematic stops of all vehicles were not violative of Fourth Amendment rights. It pointed out that the checkpoint stops were less intrusive on the motorists’ Fourth Amendment rights, and that the subjective intrusion — the generation of concern or fright on the part of lawful travelers — was appreciably less in such stops than in the “roving-patrol” or random stops. The Court further pointed out that such stops were not made at the unbridled discretion of the officers in the field but were directed by officials responsible for making decisions as to the effective allocation of law enforcement resources, that the potential interference with legitimate traffic was minimal, and that motorists were not taken by surprise or alarmed by the stops as they could see the officers performing legitimate duties. It also emphasized that the probability of harassment by the police officers was limited, because only those travelers passing through the check-point were stopped and there was supervisory control over the operation.
In Prouse, supra, the Court considered the action of police officers acting under'a police regulation permitting officers to stop vehicles at random for the purpose of checking driver’s licenses and vehicle registrations, in the State of Delaware. While the Court recognized that the sovereign had a legitimate interest in promoting highway safety, it held that the intrusion on Fourth Amendment rights by the unbridled discretion of the police officer in the field outweighed that governmental interest. While the government has a legitimate interest in seeing that only qualified drivers are permitted to operate vehicles and only vehicles fit for safe operation are permitted to be operated, there are less intrusive methods of promoting those interests. The Court concluded:
Accordingly, we hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment This holding does not preclude the State of Delaware or other states from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. We hold only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers.
Prouse, 440 U.S. at 663 (emphasis added).
In Brown v. Texas, supra, the court discussed all three cases and concluded that:
Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. [Citation omitted.]
A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely by the unfettered discretion of officers in the field. [Citations omitted.] To this end the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.
Brown, 443 U.S. at 50-51 (emphasis added).
The application of Fourth Amendment rights to checkpoint stops for the purpose of checking driver’s licenses and registrations has been considered by both federal and state courts on many occasions. Many of the cases are collected in an annotation at 37 A.L.R. 4th 10 (1985). The discussion of all of these cases and the various matters considered by the courts in their application of the balancing test enunciated by the Supreme Court in the series of cases we have discussed would unduly lengthen this opinion. However, most, if not all, of those factors often considered are present to some degree in this case and are favorable to the trial court’s ruling.
Here the roadblock was established for the purpose of ascertaining that only qualified drivers and safe vehicles were using the highways. Our code is replete with enactments regarding licensing of drivers and safety equipment of vehicles. The emergency clauses and preambles to most of those Acts state statistics and cogent reasons why these matters are of great governmental concern. No less intrusive method of determining whether a driver is licensed has occurred to us, and, due to our method of licensing vehicles by decal only, it would be extremely difficult for officers to determine if the registration of a moving vehicle is current.
There was no evidence that this roadblock was established as a subterfuge for the detection of any other criminal activity, as only officers involved in traffic control were present. The roadblock was established at the intersection of two state highways at a point near Plumerville, Arkansas. The location was close to the town and at a point where the speed limit on the highways had been reduced to thirty-five miles per hour. The roadblock was conducted in daylight and at a time when traffic was light. There would therefore be no undue interference with legitimate traffic, and the roadblock would not cause traffic to back up and create a traffic hazard. The identity of those conducting the stop as police officers was manifest. At the roadblock were four state police patrol cars, clearly identifiable as such, with their blue lights flashing. All five officers were in full uniform and recognizable as state police officers. Interference with the traveler was minimal, as the stops lasted no longer than twenty to thirty seconds per vehicle. The officers at the roadblock were not making random or unbridled stops but stopped all vehicles passing through the roadblock. The roadblock had been authorized by the acting commander of the police district, and a non-commissioned state police officer was in charge at the scene. The officers testified that the Arkansas State Police Department had issued rules and regulations for the conduct of such roadblock stops and that those rules and regulations were fully complied with at this time.
When all of the facts and circumstances of this case are considered, we cannot conclude that the actions of the police officers in any way constituted an unreasonable interference with the appellant’s Fourth Amendment rights or that the limited intrusion on those rights outweighed the promotion of the legitimate public interest it sought to promote. We cannot conclude that the trial court erred in denying appellant’s motion to suppress.
Affirmed.
Corbin, C.J., and Rogers, J., agree. | [
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John E. Jennings, Judge.
Don Chaney Arndt was convicted of possession of a controlled substance (methamphetamine) with intent to deliver and was sentenced to five years imprisonment and a fine of $2,000.00.
On appeal, Arndt contends that the trial court erred in denying his motion to suppress the evidence of drugs found in his possession because they were obtained as a result of an unlawful search and that the evidence was obtained as a result of his unlawful detention. We find no merit in either argument and affirm.
Tim Land, a state trooper and the arresting officer, testified at the suppression hearing. He said he had received word over the radio to be on the lookout for a vehicle matching the description of the one appellant was driving, for investigation of driving while intoxicated. He saw the vehicle pull up to an EZ-Mart store. When Land reached the store appellant was pumping gas into his vehicle. Land told appellant he needed to talk with him. As he walked to the front of appellant’s vehicle .he saw a shotgun lying in the front seat, which he removed for his own protection. He told appellant to pull into an empty parking space when he had finished pumping his gas.
After appellant had moved his car, Land asked him for his driver’s license. Appellant gave him the license and asked if he could go pay for the gas. Land told him to do so but to come right back. Land testified that he watched appellant enter the store and go directly past the cash register, at which point appellant “picked up his pace.” Land said he followed the appellant because he suspected he might attempt to destroy evidence. He went down a small hallway until he reached the public restroom. The restroom door had no lock and appellant had left the door open “approximately three to five inches.”
Land said as he turned toward the door he could see appellant with his pants partially down and a plastic bag protruding from them. He said he reached through the doorway and grabbed the bag as appellant attempted to close the door on him. The bag contained what was ultimately determined to be methamphetamine.
Both sides agree that whether the fourth amendment’s prohibition against unreasonable searches and seizures has been violated, turns on the question of whether appellant had a reasonable expectation of privacy under the circumstances. It is a person’s reasonable expectation of privacy, not a specific place, which is protected by the fourth amendment. Gross v. State, 8 Ark. App. 241, 650 S.W.2d 603 (1983). The test in each case should be that of reasonableness, both of the possessor’s expectation of privacy and the officer’s reason for being where he was. Gross, supra. We recognize the line of cases holding that one may have a reasonable expectation of privacy in a bathroom stall of a public restroom. See People v. Kalchik, 407 N.W.2d 627 (Mich. App. 1987), and the cases cited therein. There may be a reasonable expectation of privacy even when the bathroom stall lacks a door. See People v. Triggs, 8 Cal. 3d 884, 506 P.2d 232 (1973). We also recognize, however, the following statement found in LaFave, Search and Seizure (2d ed. 1987):
It does not follow, of course, that every instance of police observation in a public rest room constitutes a Fourth Amendment search. There is no justified expectation of privacy as to incriminating conduct which occurs in the public area of a rest room rather than inside one of the stalls. Moreover, if the police merely enter a rest room and see conduct occurring within a stall which is “readily visible and accessible” to any member of the public who so enters, there is again no intrusion into a justified expectation of privacy. Under certain circumstances, even an entry into a locked rest room will not amount to a search. (Footnotes omitted.)
What a person knowingly exposes to the public, even in his own home or office, is not a subject of fourth amendment protection. Katz v. United States, 389 U.S. 347 (1967). It is not an unreasonable search for an officer to move into a position where he has a legal right to be and look for things he may have reason to believe will be seen. Cordozo & Paige v. State, 1 Ark. App. 219, 646 S.W.2d 705 (1983). It is simply not a search to observe that which is open to view. Long v. State, 532 S.W.2d 591 (Tex. Crim. App. 1975).
In Green v. State, 566 S.W.2d 578 (Tex. 1978), the defendant was engaged in sexual misconduct in a viewing booth within an adult bookstore. The curtain to the booth was drawn, except for a three to five inch gap between the curtain and the edge of the booth. Officers stood in the hallway, looked through the gap, and saw the misconduct. The Texas court held that their conduct did not constitute a search and that the defendant had waived any expectation of the right to privacy.
In the case at bar, the state trooper had the right to be where he was — in the public hallway adjacent to the restroom. The partially opened door evidences a lack of an expectation of privacy. Like the court in Green, we find that the officer’s conduct did not constitute a search.
Nor do we agree that the appellant was unlawfully detained. Appellant had not been arrested and his detention for investigation, under the circumstances of this case, was expressly authorized by Ark. R. Crim. P. 3.1.
We find no error in the trial court’s denial of the motion to suppress.
Affirmed.
Corbin, C.J., and Cooper, J., agree. | [
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James R. Cooper, Judge.
The appellant in this criminal case was charged with theft of property in eight informations filed on September 10,1985. Thecases were consolidated for trial. The appellant was found guilty in each case, and the jury returned verdicts fixing his punishment at 21 years imprisonment on each count. The trial court sentenced the appellant to 21 years on each count, to be served concurrently with each other and concurrently with sentences arising from previous convictions. Subsequently the appellant filed a motion to correct illegal sentences, alleging that the range of punishment submitted to the jury should have been eight to fifteen years, rather than the ten to thirty-year range actually submitted. After a hearing on the motion, the trial judge reduced all eighi sentences to the minimum term of eight years, to be sefved concurrently with each other. However, the order also provided that the modified sentences were to be served consecutive to a six-year sentence from Pope County and a ten-year sentence from Yell County. From that decision, comes this appeal.
On appeal, the appellant contends that the trial court erred in ordering the modified sentences to be served consecutive to the otherwise unrelated prior sentences from Pope and Yell counties. He argues that the trial judge had no authority to modify the sentences in this manner because he had already begun to serve the sentences as originally imposed. Although it is true that a trial court has authority to modify a valid sentence once it has been put into execution, see Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987), this rule is inapplicable in the case at bar because, as the appellant concedes, all eight of the sentences originally imposed exceeded the maximum permissible range of punishment and were thus invalid. The appellant’s reliance upon principles governing the modification of valid sentences is therefore misplaced. The authority of a trial court to correct illegal sentences is codified in Ark. Code Ann. § 16-90-111 (1987), which provides that a circuit court may correct an illegal sentence at any time.
The Arkansas Supreme Court discussed the rules relating to the modification of an illegal sentence in Campbell v. State, 288 Ark. 213, 703 S.W.2d 855 (1986). The appellant in Campbell had initially been sentenced to fifty years, with fifteen years suspended. At a post-conviction hearing, the appellant correctly asserted that a sentence of fifty years was in excess of the time allowed by law, and the trial judge modified the sentence to thirty-five years, with no time suspended. On appeal, Campbell argued that he was entitled to the fifteen years suspended provided for in the original sentence. The Supreme Court rejected this argument, stating that:
Where a sentence involves separate sentences, as with several counts for example, it is true the law generally prohibits the modification of the legal portion of the sentence. However, where there is error in one portion of an individual sentence, as here, the courts view the sentence as an indivisible totality and if modification is required, the court may on resentencing impose any sentence it could have lawfully imposed at the outset.
703 S.W.2d at 857-58 (citations omitted).
We note that the facts of the case at bar are to be distinguished from the situation presented in Avants v. State, 293 Ark. 24, 732 S.W.2d 149 (1987). Avants was convicted of two felonies which he committed while on parole from an earlier felony conviction. Under Ark. Stat. Ann. § 43-2829 (Repl. 1977), now codified at Ark. Code Ann. § 16-93-604 (1987), sentences imposed for felonies committed while on parole are to be served consecutive to the sentence for the prior felony. The sentences for Avant’s later convictions were within the permissible range of punishment, and the trial judge acted within his discretion in ordering them to be served concurrently with each other; however, the trial judge erred in ordering the láter convictions to be served concurrently with the sentence for the prior felony. Although this erroneous disposition was favorable to Avants, he nevertheless challenged it. The trial court corrected the error by ordering the sentences for the subsequent felonies to be served consecutively to the sentence for the prior felony. However, the trial court additionally modified the original disposition by ordering that the later sentences were to run consecutively to each other. On appeal, Avants argued that the trial court erred in ordering the subsequent sentences to run consecutive to each other. The Supreme Court agreed, holding that the trial court had no authority to change the later sentences from concurrent to consecutive because those sentences were valid as originally imposed. Avants v. State, 732 S.W.2d at 150. Avants is inapplicable in the present case, however, because here the sentences originally imposed were not valid; in every case, the sentence was in excess of the maximum term allowable by law. Because modification of each individual sentence was required, the trial court had the authority on resentencing to impose any sentence it lawfully could have imposed at the onset. Campbell v. State, supra. We find no error, and we affirm.
Affirmed.
Mayfield, J., agrees.
Jennings, J., concurs. | [
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James R. Cooper, Judge.
The appellant was convicted in a non-jury trial of driving while intoxicated, fourth offense. He was sentenced to six years in the Arkansas Department of Correction. From that conviction, comes this appeal.
On June 13, 1987, the appellant was driving south on Highway 365. The Mayflower Police Department and the Arkansas State Police were conducting a roadblock to check driver’s licenses, vehicle licenses, and vehicle registration. The officers had set up stop signs, one facing north and one facing south, on the center line of the highway. The appellant drove through the roadblock, and stopped after Alton Straschinske, a constable in Danley Township in Faulkner County, yelled at him to stop. Straschinske asked the appellant if he saw the stop sign and the appellant said that he had not. The appellant also stated that he did not have his driver’s license. Straschinske stated that he smelled a strong odor of alcohol on the appellant and that when he asked him to get out of his truck and come to the rear of the vehicle, the appellant had to hold on to the truck to walk. The appellant admitted that he had a few drinks after he left work.
The appellant first argues that the roadblock was unconstitutional and that the evidence gathered as a result of the appellant’s being stopped at the roadblock should have been suppressed. We disagree.
We recently decided the case of Coffman v. State, 26 Ark. App. 45, 759 S.W.2d 573 (1988). In that case the appellant challenged the validity of a roadblock and argued that evidence should have been suppressed because the officers lacked probable cause to stop him. In that case the appellant was stopped because, as he approached the roadblock, he pulled into a driveway, backed out on to the highway, and headed in the opposite direction. We stated that we did not agree with the appellant’s assertion that an unlawful roadblock would infect the validity of the appellant’s stop and arrest. Because the appellant had attempted to avoid the roadblock, the officers had reasonable suspicion that he was engaged in unlawful activity. Coffman, supra; see also A.R.Cr.P. Rule 3.1. In the present case we find that once the appellant ran the roadblock, the officers had reasonable suspicion that the appellant was engaged in unlawful activity and their stop of the appellant’s car was within constitutional guidelines.
Furthermore, we are not convinced, on this record, that the roadblock was unlawful. The parties stipulated that the roadblock was conducted by the State Police and that the Mayflower Officers were merely assisting. Constable Straschin- ske testified that the police cars had their blue lights on. Howard Whittle, the Chief of Police at Mayflower, stated that he was at the roadblock, except for the time spent transporting the appellant to jail, and that while he was there every car which came through was stopped and checked. Chief Whittle also stated that Sergeant Elliot with the Arkansas State Police was the officer who requested the assistance of the Mayflower police and that he did not know the identity of Elliot’s superior officer or whether the superior officer actually ordered the roadblock. We think that under these facts, the roadblock was constitutionally permissible. See Delaware v. Prouse, 440 U.S. 648 (1979); Coffman, supra; 4 LaFave Search and Seizure: A Treatise on the Fourth Amendment §10.8 (2d ed. 1987 and Supp. 1988).
The appellant relies on the case of Garrett v. Goodwin, 569 F. Supp. 106 (E.D. Ark. 1982), as establishing the procedure which the State Police are to follow when conducting a roadblock. However, that case was a civil action and the order entered was a consent decree. Furthermore, the focus of the decree in Garrett was to prevent police officers from using roadblocks as a pretext to search for criminal evidence without probable cause. Although the planning and implementation of the roadblock appeared to meet constitutional standards, the presence of non-traffic control police officers led to the allegations of illegality of the roadblock. 569 F. Supp. at 106. In the present case, the evidence does not support a finding that the officers were using the roadblock as a pretense. There is no evidence that the officers present were involved in non-traffic assignments, there is no evidence that any searches took place, and there is no evidence that cars were stopped randomly.
The appellant’s second argument concerns the copies of court dockets which were used by the State to prove the appellant’s prior convictions of driving while intoxicated. Although three docket sheets were used to prove the appellant’s prior convictions, only two are challenged on appeal. The first document challenged is from the Beebe Municipal Court. At the bottom of the document is a stamp which appears to be a waiver of counsel. There is a dotted line which the defendant was supposed to sign, acknowledging the waiver of counsel. On this particular document the stamp was placed at an angle, and the appellant’s signature is straight and below the dotted line. It is the appellant’s contention that this stamp was placed there after the appellant signed, and that there was no valid waiver of counsel. We disagree.
The appellant is correct in his assertion that a prior conviction cannot be used to enhance punishment unless the defendant was represented by counsel or he validly waived counsel. Baldasar v. Illinois, 446 U.S. 222 (1980). The appellant cites the case of Steele v. State, 284 Ark. 340, 681 S.W.2d 354 (1984) to support his argument. However, in Steele the court clerk testified that the stamp showing that the appellant had waived counsel was placed there two years after the appellant’s trial. In the present case, there is no such evidence, and, absent any evidence that the stamp was actually placed there after the appellant signed the docket sheet, we cannot simply accept such an allegation.
We do think that the appellant’s argument concerning the copy which is from the Jacksonville Municipal Court has merit. On that sheet there is column for the name of the arresting officer. In that column, appears the words, “Atty. O’Bryan.” The appellant argues that this could be either the name of the defense attorney or the name of the prosecuting attorney. Although we agree with the State that this is not a silent record, see Thomas v. State, 2 Ark. App. 238, 620 S.W.2d 300 (1981), we do find that, in the absence of any other evidence, the issue of whether the appellant was represented or validly waived counsel is too ambiguous to be relied on. Careful adherence should be given the decisions regarding proof of prior convictions in these cases. Steele, supra. Therefore, we find that the trial court erred in using the docket sheet from the Jacksonville Municipal court as evidence of a prior conviction to enhance the appellant’s sentence. Therefore, the State only proved, by competent evidence, that the appellant was guilty of DWI III. We reverse and remand to the trial court to resentence the appellant in a manner consistent with this opinion, as a DWI third offender. See Lawson v. State, 295 Ark. 37, 746 S.W.2d 544 (1988); Rogers v. State, 293 Ark. 414, 738 S.W.2d 412 (1987).
Affirmed in part.
Reversed and remanded in part.
DELIVERED MAY 17, 1989
770 S.W.2d 211
Corbin, C.J., and Mayfield, J., agree. | [
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Donald Corbin, Chief Judge.
This appeal comes to us from Arkansas County Circuit Court. Appellants, Ray Dickson and Dickson Farms, Inc., appeal from the judgment in favor of appellee, Delhi Seed Company, filed July 27, 1987, and the court’s February 5, 1988, order denying their motion for a judgment notwithstanding the verdict and new trial. Appellee cross-appeals from the court’s February 5, 1988, order granting appellants’ motion for remittitur. We affirm in part, reveirse in part and remand.
Appellee, a Louisiana corporation, initiated this action in Arkansas County Circuit Court on August 2, 1985. Appellee alleged that on May 17,1985, appellee’s president, Mike Merrit, after receiving a call from Ray Dickson, met with Mr. Dickson and reached an agreement that appellee would purchase appellants’ entire oat production at harvest from approximately 200 acres of land at $2.25 per bushel. Appellee also alleged that it mailed a written confirmation of the agreement to appellants the next business day and contracted to re-sell the oats to a third party. Appellee contends that appellants breached the contract by selling their oats upon harvest to another seed company. Appellants denied that the parties had reached such an agreement, and filed motions to dismiss the action asserting both a statute of frauds defense and a defense predicated upon the Wingo Act. Both motions were denied. The case was tried to a jury on July 15, 1987. The jury returned a verdict in favor of appellee and against each appellant in the sum of $35,000, which appellee stipulated to be joint and several liability against the appellants. Following a judgment entered on the jury verdict, appellants moved for a judgment notwithstanding the verdict, a new trial, and for a remittitur. By order dated February 5,1988, the trial court granted appellants’ motion for remittitur, reducing the judgment by one-third, and denied the other motions. From the judgment and subsequent order comes this appeal.
For reversal, appellants raise the following five arguments: (1) The trial court erred in failing to dismiss the plaintiffs complaint under the provisions of the Wingo Act; (2) the trial court erred in failing to dismiss the plaintiffs complaint under the provisions of the Statute of Frauds; (3) the trial court erred in admitting evidence of the market price of processed oats, as combine run bob oats were the subject of this controversy, and further erred in admitting evidence of anticipated profits, incidental or consequential damages; (4) the trial court erred in failing to order a new trial when the jury returned a verdict which demonstrated that they had utilized evidence of anticipated profits in computing damages, which measure was not a proper measure of damage; and (5) the court erred in failing to direct a verdict on the basis of the proof of damages being speculative. On cross-appeal, appellee contends that the trial court erred in reducing the jury verdict by one-third. The points will be addressed in order.
Appellants first argue that the trial court erred in failing to dismiss appellee’s complaint because appellee failed to comply with the provisions of the Wingo Act, more specifically Arkansas Code Annotated § 4-27-104 (1987).
Rule 12(b) of the Arkansas Rules of Civil Procedure provides that every defense, in law or fact, shall be asserted in responsive pleadings but states that certain enumerated defenses may be raised by motion. Failure to state facts upon which relief may be granted is a defense which may be raised by motion. Ark. R. Civ. P. Rule 12(b)(6). Prior to trial appellants moved to dismiss the complaint based upon the Wingo Act. Although appellants failed to characterize the motion as a 12(b)(6) motion, it must be construed as such. Further the rule provides that “[i]f, on a [12(b)(6) motion], matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 . . . .” See also, Maas v. Merrell Assocs., Inc., 13 Ark. App. 240, 682 S.W.2d 769 (1985). The record reflects that prior to the court’s ruling on the motion, trial briefs were submitted as was an affidavit from the president of appellee corporation relating to the Wingo Act defense. It does not appear that these matters were excluded by the court in its consideration of the motion and therefore the motion must be viewed as one for summary judgment. Summary judgment is appropriate only where the pleadings, depositions and answers to interrogatories, together with the affidavits, show there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law. Moeller v. Theis Realty, Inc., 13 Ark. App. 266, 683 S.W.2d 239 (1985).In order to set up the Wingo Act as a defense, the party must show that the foreign corporation is doing business in Arkansas. See North American Phillips Commercial Elecs. Corp. v. Gaytri Corp., 291 Ark. 11, 722 S.W.2d 270 (1987). Whether a corporation is doing business in Arkansas is a question of material fact, and neither Rule 12 nor Rule 56 of the Arkansas Rules of Civil Procedure authorizes the trial court to summarily dismiss the complaint where an issue of material fact remains to be resolved. See Maas, 13 Ark. App. at 244, 682 S.W.2d at 711. We find no error in the court’s failure to dismiss the complaint.
Although appellants’ point for reversal is limited to the trial court’s failure to dismiss the complaint, both parties submitted their briefs on the substantive issues of the Wingo Act provisions and we, therefore, dispose of those arguments as well.
The Wingo Act requires that a foreign corporation doing business in Arkansas file a copy of its articles of incorporation or similar instrument, together with a statement of its assets and liabilities, and capital employed in the state, in the office of the Secretary of State. Ark. Code Ann. § 4-27-104(a) (1987). As a penalty for failing to comply with the provisions, the foreign corporation is prohibited from enforcing a contract made in this state. Ark. Code Ann. § 4-27-104(c) (1987).
The Arkansas Supreme Court in North American Phillips Commercial Elecs. Corp. v. Gaytri Corp., 291 Ark. 11, 722 S.W.2d 270 (1987) enunciated a two-part test to determine whether the threshold requirements for application of the penalty provisions of the Wingo Act have been met. First, it must be demonstrated that the contract was made by a non-qualifying foreign corporation which was “doing business” in the state; and second, it must be shown that the particular contract in question was made in Arkansas. Id. at 13,722 S.W.2d at 271. Further, if it is raised as a defense, the court must consider whether the Commerce Clause of the United States Constitution precludes application of the sanctions of the penalty provision. Id.
Appellee does not dispute that the contract was made in Arkansas. However, it contends that it was not “doing business” in Arkansas and further that the transaction is protected by the Commerce Clause. We agree. The supreme court has said that “a corporation is doing business in Arkansas within the meaning of the Wingo Act when it transacts some substantial part oi its ordinary business in this state.” Worthen Bank & Trust Co. v. United Underwriters Sales Corp., 251 Ark. 454, 474 S.W.2d 899 (1971) (emphasis original). Mike Merrit, president of appellee corporation, filed an affidavit stating among other things that the ordinary business of Delhi Seed was to purchase rough grain, process the grain at its Louisiana plant, store the grain in Louisiana and re-sell it throughout the South; that the only activity with regard to this transaction was to contract for the purchase of rough grain; and that appellee sells only five percent of its finished product in Arkansas and buys only ten percent of its rough grain in Arkansas. In the absence of contrary evidence presented by appellants, the trial court could have concluded that the evidence was insufficient to establish that appellee was “doing business” in Arkansas, and that one of the threshold requirements for application of the Wingo Act had not been met.
Even had the threshold requirements been met, the Commerce Clause would have precluded application of the Act in the case at bar. Although the state law of Arkansas is applied to determine the threshold application of the act to appellee’s activities, characterization of the activity as interstate commerce for purposes of testing the validity of the application against the Commerce Clause is a question of federal law. Uncle Ben’s Inc. v. Crowell, 482 F. Supp. 1149 (E.D. Ark. 1980). The factual setting in this case is remarkably similar to that of Uncle Ben’s. For purposes of the Commerce Clause analysis, the two cases are indistinguishable and therefore, the Commerce Clause would have precluded application of the Wingo Act in any event.
Next, appellants argue that the trial court erred in failing to dismiss the plaintiffs complaint under the Statute of Frauds. Arkansas Code Annotated § 4-2-201 (1987) provides in pertinent part:
(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker ....
(2) Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it had reason to know of its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within ten [10] days after it is received.
Appellee contends that the Statute of Frauds defense is not applicable because it sent a confirmation of the contract as provided for in subsection (2) above, which was not objected to in writing. Appellants contend the confirmation was insufficient because they had no reason to know that the contract would contain terms relating to availability as did the confirmation. However, we need not determine whether the confirmation was sufficient. While it appears that we are the only jurisdiction which so holds, both parties have overlooked the fact that under Arkansas law a farmer is not a merchant. Cook Grains v. Fallis, 239 Ark. 962, 395 S.W.2d 555 (1965). The code specifically provides that a confirmation is valid only between merchants, and thus would not apply to take the contract out of the Statute of Frauds in this case.
Appellee argues alternatively that appellants should be estopped from asserting the Statute of Frauds defense. In Ralston Purina Co. v. McCollum, 271 Ark. 840, 611 S.W.2d 201 (Ark. App. 1981), we held that because the Uniform Commercial Code states that the principles of law and equity, including estoppel, supplement the code unless displaced by a particular provision, the doctrine of promissory estoppel may be asserted by one party to an oral contract for the sale of goods, to prevent the other party from asserting the defense of the Statute of Frauds.
A promise is binding if an injustice can be avoided only by enforcing the promise, if the promisor should reasonably expect to induce action or forbearance of a definite and substantial character by the promissee, and if that action is induced. Id. at 844,611 S.W.2d at 203. It is well settled that whether estoppel is applicable is an issue of fact to be decided by the trier of fact. Askew Trust v. Hopkins, 15 Ark. App. 19, 688 S.W.2d 316 (1985). As previously discussed, because a question of fact existed, summary dismissal of the complaint was not appropriate. We find no error in the trial court’s failure to dismiss appellee’s complaint.
We note here that the remainder of appellants’ points for reversal, although numbered separately, were grouped together for argument making it difficult to determine the specific argument with regard to each point. We address appellants’ arguments as we understand them.
Appellants’ third point alleges that the trial court erred in admitting evidence of the market price of processed oats since combine run (unprocessed) bob oats were the subject of the alleged contract. At trial appellee’s president, Mike Merrit, testified that upon discovery of appellants’ intent not to deliver the oats under the contract, he attempted to purchase oats to replace them because he had contracted to re-sell the oats, after processing them, to a third party. He testified that due to the oat shortage in 1985, he was unable to find unprocessed (combine run) oats and instead purchased processed oats to fulfill his contractual obligations to the third party. He testified that the only oats he could find for sale were processed oats at a cost of $4.20 per bushel. Appellants objected that the price of processed oats was irrelevant but the court overruled the objection. On cross-examination, Mr. Merrit testified that he knew Arkansas County Seed Company had in excess of 150,000 bushels of unprocessed oats from which appellee could have possibly pur chased replacement oats, but did not attempt to do so because he was not on the best of terms with Mr. Butler, who was apparently Arkansas County Seed’s owner. Testimony was also adduced from other witnesses that they had no combine bob oats for sale and that the cost of processed oats in 1985 ranged from $3.75 per bushel to $4.25 per bushel.
Arkansas Code Annotated § 4-2-711 (1987) provides generally that where the seller fails to make delivery the buyer may cancel and may in addition “cover” and have damages under § 4-2-712 or recover damages for non-delivery as provided under § 4-2-713. Comment 5 to § 2-713 of the Uniform Commercial Code, identical to our provision, states that the remedy for non-delivery is completely alternative to cover and applies only to the extent that the buyer has not covered. Therefore, because appellee chose to purchase substitute goods its remedy was limited to that of § 4-2-712 unless the purchase did not constitute “cover.” Section 4-2-712(1) provides that a buyer may “cover” by making in good faith and without unreasonable delay a reasonable purchase of or contract to purchase goods in substitution for those due from the seller. If the buyer “covers”, he may recover from the seller the difference between the cost of cover and the contract price together with any incidental or consequential damages but less expenses saved in consequence of the seller’s breach. Ark. Code Ann. § 4-2-712(2) (1987). The cost of the processed oats which appellee chose to purchase in substitution of those not delivered was admissible in an attempt to establish damages for cover. Although the substituted goods were different in kind from those contracted for, it was for the jury to determine whether the purchase of processed oats was “a reasonable purchase of goods in substitution for those due from the seller.”
Appellants also contend in their third point that the court erred in admitting evidence of incidental or consequential damages and anticipated profits. Incidental or consequential damages are recoverable items of damages under both section 4-2-712 and section 4-2-713. Subject to the evidentiary rules of admissibility, evidence relating to both items is admissible. Appellants argue that evidence of consequential damages was not admissible for four reasons, the first being that the court did not instruct on that particular element of damages. We observe at this point that the jury was given only one instruction regarding the calculation of damages which did not include the elements of consequential or incidental damages. However, the absence of a proper jury instruction on the matter does not affect the admissibility of the evidence. Appellants failed to offer a jury instruction encompassing or defining consequential damages and cannot now be heard to complain that evidence was before the jury without a proper instruction regarding its use.
Appellants also argue that evidence of consequential damages was erroneously admitted because appellee testified that appellants did not know of his intention to resell and testified that his contract with a third party for ten thousand bushels was terminated without suffering damages, and because the damages could have reasonably been prevented by cover. Appellants seem to argue that the evidence was not admissible because it did not meet the definition of consequential damages. Consequential damages include any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not have reasonably been prevented by cover or otherwise. Ark. Code Ann. § 4-2-715(2)(a) (1987). Whether an item of damage falls within this category is dependent upon factual determinations which are to be made by the trier of fact. The trial court properly admitted the evidence for consideration by the jury. Likewise, anticipated profits may be recoverable as consequential damages if the jury finds that the losses resulted from the buyer’s general or particular requirements of which the seller had reason to know and could not have been prevented by cover. Consequential damages or anticipated profits may be recovered if the evidence establishes the alleged damages with reasonable certainty. See Traylor v. Huntsman, 253 Ark. 704, 488 S.W.2d 30 (1972). We find no error in admitting evidence of incidental or consequential damages, including anticipated profits.
Appellants next argue that the court erred in failing to order a new trial when the jury returned a verdict which demonstrated that it had utilized evidence of anticipated profits in computing damages because it was not a proper measure of damage. If the trial judge denies a motion for a new trial, the court on appeal need determine only if the verdict is supported by substantial evidence. Ferrell v. Whittington, 271 Ark. 750, 610 S.W.2d 572 (1981). As discussed with regard to point three, anticipated profits are recoverable as a consequential damage of the seller’s breach if the jury finds that they meet the requirements of § 4-2-715(2)(a) and are established with reasonable certainty. Furthermore, the jury verdict was not submitted on interrogatories, and we cannot say that the jury utilized evidence of anticipated profits in reaching their verdict. There was substantial evidence presented at trial from which the jury could have concluded that the parties entered into an enforceable contract and that appellants breached the contract. In our opinion, the jury was not only given an incomplete set of instructions but the one given was erroneous because it encompassed the elements of damage for non-delivery rather than cover and omitted incidental or consequential damages. However, neither party raised the issue on appeal, and we consider the verdict in light of the instruction given. The jury was instructed that if they found a breach of contract, the measure of damages was the difference in the market price at the time appellee learned of the breach and the contract price, less expenses saved in consequence of the seller’s breach. Because the instruction failed to specify whether the computation was based upon market price of processed oats or market price of combine run bob oats, the jury was free to use the market price of processed oats in their calculation of damages. Had the jury followed the instruction and interpreted it to require the market price of processed oats, they could have arrived at a damage figure in excess of $30,000, using the evidence produced during the trial regarding the contract price and expenses saved. Furthermore, a verdict need not correspond in amount to the proof adduced by either party. Garrison Properties, Inc. v. Branton Constr. Co., 253 Ark. 441, 486 S.W.2d 672 (1972); Baumeister v. City of Fort Smith, 23 Ark. App. 102, 743 S.W.2d 396 (1988). There was substantial evidence to support the trial court’s denial of appellants’ motion for a new trial.
Finally, appellants argue that the trial court erred in failing to direct a verdict on the basis that the proof of damages was speculative. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Walker v. State, 13 Ark. App. 124, 680 S.W.2d 915 (1984). A directed verdict is given only in cases where no issues of fact exist, and this court will review the evidence in the light most favorable to the appellee. Lum v. State, 281 Ark. 495, 665 S.W.2d 265 (1984). Appellants challenge the sufficiency of the proof as to damages, alleging specifically that the opinion testimony of Mike Merrit was speculative. Mr. Merrit testified that had he been able to purchase unprocessed oats, process them, and sell them, he would have made $2.00 per bushel. Even if we were to agree that this evidence was speculative, there was substantial other evidence from which the jury could have determined damages. Both parties submitted evidence as to the market price of unprocessed oats at the time of the breach, appellee submitted evidence as to the market price of processed oats, both parties testified regarding the price under the subject contract, and appellee offered evidence regarding his expenses saved because of the breach. We find no error in the court’s denial of appellants’ motion for a directed verdict on the grounds that the proof of damages was speculative. The direct appeal is affirmed in all respects.
Appellee alleges on cross-appeal that the trial court erred in reducing the jury verdict by one-third. We agree.
Following the trial, appellants moved for a judgment notwithstanding the verdict, new trial and remittitur. The trial court denied the first two motions but ordered that the verdict be reduced by one-third. In his letter opinion accompanying the order, the trial judge stated:
The jury apparently attempted to award the most damages it possibly could and the court has no problem with that. But, to award the plaintiff damages on the landlord’s share of the crop would offend anyone’s sense of justice. The verdict will therefore be reduced by one-third.
Courts of record have the inherent power to reduce jury awards to conform to the established facts. Morrison v. Lowe, 274 Ark. 358, 625 S.W.2d 452 (1981); Dierks Lumber & Coal Co. v. Noles, 201 Ark. 1088, 148 S.W.2d 650 (1941). However, a belief by a trial court that damages are excessive is not, standing alone, a sufficient ground for ordering a reduction because if that were the standard, the great discretion of the jury would be abrogated. Morrison, 274 Ark. at 364-65, 625 S.W.2d at 455.
The trial court reduced the jury’s award of damages on the basis that the parties’ oral contract reserved to the appellants’ landlords one-third of the crops grown. While the trial court may reduce the verdict to conform to the facts, we believe his factual finding that the contract reserved certain rights to the appellants’ landlords was clearly erroneous. In their motion for remittitur, appellants contended that they only contracted to sell two-thirds of the acreage production because one-third of the oats were owned by other parties. However, Frank Ellis, trust officer of DeWitt Bank and Trust, testified that the bank’s trust department managed the other one-third interest for the corporations which owned the rights to the landowners’ share of production. He further testified that Mr. Dickson contacted him regarding the sale for the oat crop to appellee and asked him if he was willing to sell the oats. Mr. Ellis testified as follows:
I told him that I... with the market like it was I thought, ah, two and a quarter was a fair price. And that we couldn’t beat it trying to store them and handle them and haul them around and get them stored. And whatever he did, ah, if he sold them to sell our part too.
Appellants had express authority to sell the entire crop to appellee. In light of the evidence, the trial court abused his discretion in ordering a reduction based upon an erroneous factual determination. The order of remittitur is reversed and the cause remanded with instructions to reinstate the judgment.
Affirmed in part, reversed in part and remanded.
Cooper and Mayfield, JJ., agree. | [
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Melvin Mayfield, Judge.
Appellant, Christopher Donovan, was convicted of manslaughter and sentenced to serve nine years in the Arkansas Department of Correction.
The record shows that on the afternoon of Saturday, May 2, 1987, appellant and Karla Denise Davis, a woman with whom he lived, went to a gathering of friends where they drank beer, played pool, and rode horses. Late in the afternoon, Chris and Karla went home.
Appellant testified that he wanted to go to sleep but Karla kept pestering him, so he went out to the camper van and lay down. He said a short time later Karla came out to the van with a shotgun and threatened him, but he did not consider it a real threat because she had played around like that before. He testified that he said he was going to sleep and she said, “Well, go in the house to sleep.” He went into the house but, according to appellant, before he was able to get to sleep, Karla became very agitated and started throwing things at him and breaking dishes, pictures, and other things. When she picked up the television and started to throw it on the floor, he grabbed it and they began to wrestle over its possession. Appellant testified that he pushed Karla aside with one arm and she fell. He replaced the television on its stand, then kicked Karla’s foot and told her to get up. He then realized her eyes were filmed over, and she was seriously hurt. He tried to call 911 but did not get the number, so he carried Karla to the porch and began to give her mouth to mouth resuscitation.
A friend of Karla’s, Sandra Crittenden, testified that on the day of the occurrence Karla called her, said something had happened, and she was coming to Sandra’s house. Sandra called Karla ten to fifteen minutes later and appellant answered. He told Sandra to get her husband and come quickly because Karla was badly hurt. There was testimony that Bob and Sandra Crittenden arrived about five minutes later to find appellant cradling Karla in his lap on. the porch. Bob Crittenden, who was an emergency medical technician, immediately began to administer cardiopulmonary resuscitation but testified it was his opinion that Karla was already dead.
Dr. Fahmy Malak testified that Karla had suffered a square-shaped bruise on the right side of her neck which appeared to have been made with a belt buckle, a bruise on the left side between the ear and the lower jaw which was consistent with a blow made by a fist, and bruises on her back which were consistent with being stomped with a shoe. He testified that the cause of death was swelling of the brain and bleeding into the skull caused by the blows to the left and right sides of the head and neck.
Appellant was charged with first degree murder and the jury found him guilty of manslaughter. His first argument is that his right under the fifth and fourteenth amendments of the United States Constitution not to testify or have that fact called to the attention of the jury, was violated when he was required, during jury selection, to read his list of witnesses and thus disclose his intention to testify or not.
It is well settled that a defendant has the right to remain silent during his trial without this being called to the attention of the jury. In Russell v .State, 240 Ark. 97, 398 S.W.2d 213 (1966), the trial court, over the objections of defense counsel, told the jury that the accused had the right to testify or not to testify and that his failure to do so was not evidence of guilt and was not to be considered by the jury. The appellate court reversed, stating:
This is a familiar instruction. When the accused asks that such a charge be given it is reversible error for the court to deny the request. Cox v. State, 173 Ark. 1115, 295 S.W. 29 (1927). When, however, the accused objects to such an instruction, a different situation is presented. Our decisions on the point have not been entirely harmonious. We held in Watson v. State, 159 Ark. 628, 252 S.W. 582 (1923), that the giving of the instruction was prejudicial error, but we took the opposite view in Thompson v. State, 205 Ark. 1040, 172 S.W.2d 234 (1943). Upon reconsidering the question we have concluded that the instruction ought not to be given against the wishes of the defendant. If the accused is to have the unfettered right to testify or not to testify he should have a correlative right to say whether or not his silence should be singled out for the jury’s attention.
240 Ark. at 100 (emphasis in the original).
This type of instruction was again held to be reversible error in Mosby & Williamson v. State, 246 Ark. 963, 440 S.W.2d 230 (1969), where the Arkansas Supreme Court said:
One of appellants’ objections relates to the giving of an instruction with reference to the fact that neither of the two accused appellants took the witness stand during the joint trial. The court gave the familiar or somewhat standard instruction that:
“A defendant may or may not testify in a case at his own discretion. The fact that a defendant did not testify is not evidence of his guilt or innocence and in fact is no evidence at all and is not to be considered by you in arriving at your verdict.”
246 Ark. at 964. After discussing the opinion in Russell, supra, the court concluded:
Therefore, we must hold that in the circumstances the giving of this instruction, to which appellants objected, constituted prejudicial error.
246 Ark. at 965.
After being retried and convicted a second time, appellant Mosby again appealed to the Arkansas Supreme Court, Mosby v. State, 249 Ark. 17, 457 S.W.2d 836 (1970), complaining that the trial court had improperly commented on his right not to testify. During voir dire, the trial court told the prospective jurors:
“There have been numerous questions propounded to the jury. The court will, at the conclusion of the case, instruct the jury as to the law of the case. One of the instructions will be concerning the situation that the defendant did testify and in the event he didn’t testify concerning that situation.”
249 Ark. at 21. The appellate court held that this comment impinged upon the appellant’s right of choice about testifying and that it denied him the “unfettered correlative right to freely determine whether such an instruction should be given.” Again his conviction was reversed.
In Munn v. State, 257 Ark. 1057, 521 S.W.2d 535 (1975), a deputy clerk asked that the defendant stand and be sworn with the rest of the witnesses. Defense counsel objected stating that the defendant had a right to be sworn at a later time, to which the judge replied, “Sure. Sure. He doesn’t have to take the stand at all if he doesn’t want to.” In reversing the conviction, the appellate court relied upon Russell and Mosby and stated that “the appellant’s right to testify or not to was brought to the jury’s attention by the court.” 257 Ark. at 1059. See also Harris v. State, 260 Ark. 646, 543 S.W.2d 459 (1976).
In Newberry v. State, 261 Ark. 648, 551 S.W.2d 199 (1977), the court inquired if defense counsel wanted to have his client sworn with the rest of the witnesses. Counsel did not answer directly but asked to make a motion and, out of hearing of the jury, requested a mistrial which was denied. On appeal, New-berry relied on the Mum case, supra-, however, the court found the cases significantly different because in Munn there was a positive assertion which brought to the jury’s attention the defendant’s right to testify or to remain silent while in Newberry the court’s routine inquiry did not do this and, even if error, it was harmless.
More recently, in Hunter v. State, 280 Ark. 307, 657 S.W.2d 543 (1983), the court considered this issue in a factual situation similar to that in the case at bar. The court explained:
The second argument concerns the court’s remarks in asking the appellant to list his possible witnesses. When the court asked for the names of appellant’s witnesses an objection and request for a mistrial were made. The argument is that such comment might well have implied that the burden of proof was shifted to the appellant and further that such comment infringed on appellant’s right to remain silent. The jury was subsequently instructed that the defendant had an absolute constitutional right not to testify. This instruction was given at the request of appellant’s attorney. We think the present situation is analogous tothecaseof Newberry v. State, 261 Ark. 648, 551 S.W.2d 199 (1977). In Newberry the trial court asked defense counsel if he wished to have his client sworn at the time other witnesses were administered the oath. A motion was made for mistrial and refused by the court. On appeal we held that even if such procedure were error it was harmless. We adhere to the same principle in the present case.
280 Ark. at 309.
All of the above cases were concerned with a trial judge’s jury instruction, or comment in the presence of the jury, making some sort of reference to the defendant’s right to testify, or not to testify, in the case. We are not discussing a situation where the reference was made by the prosecutor. Compare Clark v. State, 256 Ark. 658, 509 S.W.2d 812 (1974). The approach used in the situation presented by this case, as disclosed by the cases discussed above, seems to relate to the nature of the court’s comment — whether the comment was a positive assertion as to the defendant’s right to testify or whether the comment would only give rise to an inference in that regard. The case of Pruett v. State, 282 Ark. 304, 669 S.W.2d 186 (1984), also demonstrates that it is not only what was said, but when and how it was said, that enters into the determination of whether a prejudicial error has occurred. See 282 Ark. at 312.
We are not convinced that a prejudicial error has occurred in the present case. Although the matter could have been handled in a way that would have reduced the difficulty of our decision, what really occurred here is that the court required appellant’s counsel to read a list of his witnesses; however, the court said nothing in regard to the appellant or whether he was to be included on that list if he was going to testify. Based upon the cases discussed above, we have concluded in this case that the trial judge’s requirement that defense counsel read his list of wit nesses, without further comment by the court indicating reference to appellant, did not constitute reversible error.
Appellant’s next argument is that the trial court erred when, after having fully instructed the jury, the court then gave the jury an additional definition of manslaughter. At the conclusion of the evidence, the judge, prosecutor and defense counsel retired to chambers where the jury instructions were discussed. They then returned to the courtroom and the judge read the instructions to the jury. After telling the jury that the appellant was charged with murder in the first degree, which included the lesser offenses of murder in the second degree, manslaughter and negligent homicide, the court said to sustain the charge of manslaughter:
[T]he State must prove beyond a reasonable doubt that Christopher Donovan caused the death of Karla Davis under circumstances that would be murder except that he caused the death under the influence of extreme emotional disturbance, for which there was reasonable excuse.
When the judge completed reading the instructions, the prosecutor approached the bench and objected because there were alternative situations which could result in conviction of second degree murder or manslaughter which the judge had left out of the instructions he had read. Defense counsel objected to any repeated reading of the instructions, arguing that the prosecutor failed to object to the proposed instructions prior to the reading, and therefore, had waived any right to have the instructions repeated or modified; that it would be highly prejudicial to have the judge repeat only two instructions and place undue emphasis on those two offenses; and that the instructions were correct as read. The court overruled defense counsel’s objection but did repeat all the offense instructions and added to the manslaughter instruction the law involved if appellant was found to have “recklessly” caused the death of Karla Davis. On appeal, appellant argues that the additional instruction on manslaughter was reversible error. We do not agree.
In the first place, we believe the additional manslaughter instruction was legally correct. The court had instructed in the terms of AMCI1504(a) which allows the jury to find a defendant guilty of manslaughter if the death was caused under circumstances that would be murder except for the fact the defendant had acted under the influence of extreme emotional disturbance for which there was reasonable excuse. The “Note on Use” which follows the text of AMCI1504 suggests that paragraph (a) would ordinarily be used where the offense is a lesser included offense to a murder charge; however, the Note does not suggest that it would be improper to also instruct on manslaughter as a lesser included offense where there is evidence that the defendant may have recklessly caused the death. Indeed, in Williams v. State, 17 Ark. App. 53,702 S.W.2d 825 (1986), this court reversed because the trial court failed to instruct the jury on manslaughter (as a lesser included offense of a murder charge) when there was evidence from which the jury could have found the defendant recklessly caused the victim’s death. That term is defined in Ark. Code Ann. § 5-2-202(3) (1987) as follows:
A person acts recklessly with respect to attendant circumstances or a result of his conduct when he consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.
See also Williams v. State, supra.
In the present case, the appellant testified that Karla’s death resulted from a fall caused when he pushed her while they were wrestling over possession of the television set. There was other evidence, however, from which the jury could have found that the appellant used such force on Karla that he was guilty, at least, of recklessly causing her death. We find the additional manslaughter instruction legally correct under the evidence in this case.
The additional instruction relating to manslaughter where death is caused by reckless conduct was given to the jury before closing arguments were made. Although the appellant argues that the instruction was unduly emphasized when the court did not repeat all the instructions, we do not agree. We do agree that additional instructions must be used with care. The case of Hicks v. State, 225 Ark. 916, 287 S.W.2d 12 (1956), cited by appellant, makes it clear that it is preferable to settle the instructions in chambers. Moreover, Rush v. State, 239 Ark. 878, 395 S.W.2d 3 (1965), shows the danger of giving new or repeated instructions after jury deliberations have begun. However, in McGaha v. State, 216 Ark. 165, 224 S.W.2d 534 (1949), the court said:
The trial court did not err in reinstructing on the degrees of homicide after the jury reported agreement on the question of defendant’s guilt as to some offense. It is within the province of the presiding judge to give further instructions when, in the exercise of proper discretion, he regards it necessary to do so in the furtherance of justice, and it is not always necessary in such cases that he should repeat the whole charge. [Citations omitted.]
216 Ark. at 171-72. Also, in Wood v. State, 276 Ark. 346, 635 S.W.2d 224 (1982), the court said:
It is within the province of the presiding judge to recall the jury and [give] them further instructions when, in the exercise of a proper discretion, it is necessary to do so in the furtherance of justice. Harrison v. State, 200 Ark. 257, 138 S.W.2d 785 (1940). It is not always necessary in such cases that he should repeat the whole charge. Harrison v. State, supra.
276 Ark. at 349. Furthermore, Rule 33.4 of the Arkansas Rules of Criminal Procedure provides, in part, as follows:
(d) The judge may recall the jury after it has retired to deliberate and give it additional instructions in order to:
(i) correct or withdraw an erroneous instruction;
(ii) clarify an ambiguous instruction; or
(iii) inform the jury on a point of law which should have been covered by the original instructions.
(e) Should additional instructions be given, the judge in his discretion may allow additional argument by counsel.
While McGaha and Wood, supra, approved additional instructions under situations where the jury had requested the instructions, and the appellate court found no error since the jury had indicated it understood all the other instructions, both opinions specifically state that it is not always necessary to repeat all the instructions. Both opinions also say that additional instructions may be necessary in the furtherance of justice, and both opinions recognize that the real problem is the proper exercise of the trial court’s discretion.
Because the additional manslaughter instruction was supported by the evidence, was given after the other instructions were given and before the closing arguments were made, and was authorized by both case law and Ark. R. Crim. P. 33.4(d), even if the jury had retired to deliberate, we find no abuse of the court’s discretion in giving the additional instruction in this case.
Affirmed.
Corbin, C.J., and Cooper, J., agree. | [
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James R. Cooper, Judge.
The appellant in this criminal case pled guilty to a charge of terroristic threatening on June 25, 1987, and was sentenced to five years probation. The terms of the appellant’s probation require him to undergo a full course of treatment at the Gyst House in Little Rock, and stay at that facility for one year or until he completed the program. The State subsequently filed a petition to revoke the appellant’s probation, alleging that the appellant failed to comply with the condition relating to the Gyst House, and that he had additionally violated his probation by committing the offenses of criminal trespass and third-degree battery. After a hearing held on October 14, 1987, the trial court found that the appellant had violated the terms of his probation, and issued an order revoking the appellant’s probation. From that decision, comes this appeal.
The appellant does not contest the trial court’s finding that he violated the terms of his probation, but instead argues that the trial court erred in failing to order an examination to determine whether the appellant was competent to assist in his own defense. The record shows that the appellant was committed to the Arkansas State Hospital on January 28, 1987, for observation and examination to determine his sanity and his fitness to proceed. A psychiatric report dated March 3,1987, diagnosed the appellant as suffering from several disorders, including adult antisocial behavior, borderline intellectual functioning, mixed substance abuse, and mixed personality disorder. The report concluded that the appellant was aware of the nature of the charges and proceedings and was capable of assisting with an attorney in the preparation of his defense.
This report, prepared for trial and delivered approximately four months before the subsequent probation revocation proceeding from which this appeal is taken, was before the trial judge at the revocation hearing. At the commencement of the hearing, the appellant’s attorney informed the court that he did not believe the appellant was competent to assist in his own defense and that, although he could not say that the appellant’s condition had worsened, his condition had not improved. The circuit judge stated that, although the appellant obviously had a problem and was unpredictable, the appellant had been found competent to assist in his own defense by the State Hospital report dated March 3, 1987, and that he would proceed with the revocation hearing.
The appellant contends that the trial court erred in failing to order an additional psychiatric examination under Ark. Code Ann. § 5-2-305 (1987), to determine whether he was competent to assist in his own defense. No issue was raised below or on appeal concerning the applicability of § 5-2-305 to this type of situation.
The sole issue raised on appeal is whether, in these circumstances the trial court was required, sua sponte, to order a psychiatric examination. Under § 5-2-305, the court must suspend all further proceedings and order a psychiatric examination whenever there is reason to doubt the defendant’s fitness to proceed. The issue to be resolved in the present case, then, is whether the evidence raised a reasonable doubt about the appellant’s competency. See Jacobs v. State, 294 Ark. 551, 744 S.W.2d 728 (1988). In determining the existence of a reasonable doubt as to competency, it is appropriate to consider any irrational behavior exhibited by the defendant, his demeanor in the proceedings, and any prior medical opinion on competence to assist in his defense. Id.
The trial judge considered the psychiatric examination report prepared for trial, which diagnosed the appellant as suffering from various mental disorders but found him capable of assisting in his own defense. Although approximately four months had elapsed between the trial date and the revocation hearing, there was no allegation that the appellant’s mental condition had changed: instead, defense counsel merely stated that his client’s condition had apparently neither worsened nor improved. Unsupported representations of incompetency by defense counsel have been held insufficient to raise the requisite reasonable doubt as to competence. Collins v. Housewright, 664 F.2d 181 (8th Cir. 1981). Although the appellant’s testimony was, at times, rambling and disjointed, his behavior was not inconsistent with the diagnosis contained in the psychiatric report. The circuit judge expressed knowledge of the appellant’s condition and had the opportunity to observe his demeanor and behavior at the hearing. In the absence of any allegation that the appellant’s mental condition had changed or evidence specifically contradicting the finding of competence in the psychiatric report, we hold that the trial court did not err in failing to order an additional psychiatric examination.
Affirmed.
Corbin, C.J., and Mayfield, J., agree. | [
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